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Chapter 3 PRIVATE ENFORCEMENT ACTIONS I. SECTION POSITION The IPL Section favors the creation of a private right of action as part of any legislation designed to address Predatory Foreign Websites. II. SECTION RESOLUTION: TF-07 RESOLVED, the IPL Section supports allowing copyright and trademark rightsholders to pursue civil remedies in order to effectuate the remedies set forth in TF-06 to redress the piracy of their copyrighted works or counterfeiting relating to their trademarks, so that such efforts may supplement civil and criminal efforts that may be undertaken by U.S. governmental actors. NOW THEREFORE, the IPL Section supports the creation of a private right of action to allow copyright and trademark rightsholders to privately enforce their intellectual property rights against Predatory Foreign Websites as well as the U.S. intermediaries used by such websites, in cases where the intermediaries do not take action voluntarily. III. DISCUSSION: Private Enforcement Actions In considering the elements of any future legislation to combat online piracy and counterfeiting emanating from Predatory Foreign Websites, an important consideration is the question of whether or not private enforcement actions should be permitted as a supplement to governmental enforcement actions. 1 Should there be a private right of action by U.S. copyright and trademark rightsholders with respect to such Predatory Foreign Websites, or should the only remedy be an action by U.S. governmental entities? If there is a place for such private rights of action, should they be limited in some way (e.g., with respect to the entities against whom such actions can be brought; with respect to the remedies that can be sought in such actions [i.e., should they be limited to no-fault injunctive relief]; or with respect to a requirement to satisfy pre-conditions before such actions can be brought)? The IPL Section considers that, as in many other areas of the law, 2 private rights of action with respect to Predatory Foreign Websites serve a valuable function not duplicated by governmental actions and that any future legislation should therefore authorize such actions. Such legislation should allow individual rightsholders to seek the same remedies that the IPL Section recommends be available to governmental actors. The question of whether such intermediaries should be subject to safe harbors or immunity for responding to a rightsholder request that they cease doing business with or on behalf of a Predatory Foreign Website, whether in response to a private action or to voluntary action, is considered elsewhere in this White Paper. A. Background The initial legislative proposal addressing rogue websites contemplated only a right of action by the Attorney General, providing private rightsholders with no additional enforcement tools to address their concerns about online piracy and counterfeiting by these Predatory Foreign 47
Chapter 3 Websites. 3 In addition to public comment suggesting that a private right of action might be desirable, several witnesses testified before Congress that allowing a private right of action was necessary in order to allow smaller rightsholders the ability to combat these rogue sites even if the individual violation of their rights was not significant enough to warrant intervention by the government. 4 48 B. The Benefits of Allowing Private Rights of Action As indicated, private rights of action as a supplement—and sometimes even an alternative—to governmental actions are common in many areas of the law, and copyright and trademark law are no exception, both in the US and elsewhere. 5 The usual reason cited for allowing such actions is the increased level of enforcement such actions provide, particularly when governmental resources are scarce, as they almost always are. On a more philosophical level, allowing private parties who are the primary beneficiaries of enforcement of statutory rights to bear the cost of vindicating those rights also arguably aligns costs and benefits associated with the granting of such rights in a way that is superior to the alignment of costs and benefits associated with governmental actions to vindicate the same rights. These benefits have particularly been noted in cases of foreign-based cybercrime. 6 Moreover, private rights of action may actually raise fewer threats to civil liberties than governmental action, particularly with respect to First Amendment and related limitations on governmental power. 7 The private right of action provisions of SOPA and PIPA were heavily criticized when the bills were first introduced, 8 but as time went on, the primary focus of the criticism shifted to their provisions granting immunity from liability to intermediaries for voluntarily complying with the demands of private rightsholders seeking to deny intermediary services to rogue websites. That subject is philosophically distinct from granting rightsholders a private cause of action and is treated elsewhere in this White Paper. 9 C. Potential Targets for and Limitations on Private Rights of Action As described in the section of this White Paper on “Remedies,” 10 a private right of action could potentially run against three different groups: Predatory Foreign Websites, intermediaries, and consumers. As that section explains, actions against consumers are problematic in a variety of ways, but actions against PFWs and actions against intermediaries serving such websites are more promising. 11 Recall that under SOPA and PIPA, the private right of action ran only against a rogue site itself (specifically, its registrant, owner/operator(s) and/or its domain name, depending on which of the above could successfully be served), with intermediaries subject to service of any resulting cease and desist order then having a free-standing obligation to cease doing business with the relevant site, subject to a motion to compel in the same court that granted such order. 12 This proposal was subject to criticism from both opponents and supporters of the legislation. Opponents expressed concern that the system encouraged intermediaries, through excessive grants of immunity for complying with such orders, not to object to service of the cease and desist orders, while proponents expressed concern about the lack of judicial economy associated with the prospect of large numbers of drawn-out lawsuits between rightsholders and accused rogue sites, which would threaten to render any subsequent relief from intermediaries too little, too late. To respond to both criticisms, the IPL Section recommends a hybrid solution, by which rightsholders would be allowed to seek direct remedies directly against PFWs (who would have notice and an opportunity to be heard, including as to any objection to being characterized as a PFW) and direct remedies against one or more of the U.S. intermediaries identified above. 13 This provides full due process rights to the alleged PFW, both in cases where it is sued directly and in cases where its status as a PFW is critical to the issuance of an injunction against one or more of the intermediaries that it uses. Such a procedure is a little less convenient for rightsholders, but it allows the site itself the maximum due process to defend itself against both the onus of being
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A Section White Paper: A Call for A
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The views expressed herein represen
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Call for Action for Online Piracy a
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Call for Action for Online Piracy a
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INTRODUCTION: BALANCING THE INTERES
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Introduction found in national laws
Page 14 and 15: Introduction There are also many si
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Page 24 and 25: Chapter 2 CIVIL REMEDIES I. SECTION
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Page 28 and 29: Civil Remedies ad revenue, payment
Page 30 and 31: Civil Remedies Whether the Predator
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Page 34 and 35: Civil Remedies ISPs and web hosting
Page 36 and 37: Civil Remedies . . . . However, thi
Page 38 and 39: Civil Remedies trademark owner, Tif
Page 40 and 41: Civil Remedies Finally, the alterna
Page 42 and 43: Civil Remedies Legislative revision
Page 44 and 45: Civil Remedies Most intermediaries
Page 46 and 47: Civil Remedies of foreign sites who
Page 48 and 49: Civil Remedies the RIAA initiated l
Page 50 and 51: Civil Remedies employ DNSSEC, which
Page 52 and 53: Civil Remedies 25. See BAE Systems
Page 54 and 55: Civil Remedies 121, 134-35 (2d Cir.
Page 56 and 57: Civil Remedies 84. Id. at 1169. 85.
Page 58 and 59: Civil Remedies 124. Id. at 5. 125.
Page 60 and 61: Civil Remedies at *10-*11, *24-*25
Page 62 and 63: Civil Remedies 188. A technical ove
Page 66 and 67: Private Enforcement Actions labeled
Page 68: Private Enforcement Actions interme
Page 71 and 72: Chapter 4 the Civil Remedies chapte
Page 73 and 74: Chapter 4 These complaints, while b
Page 75 and 76: Chapter 4 The Act would not have es
Page 77 and 78: Chapter 4 Evoking by far the most i
Page 79 and 80: Chapter 4 States Interests at Home
Page 81 and 82: Chapter 4 47. Combating Online Infr
Page 84 and 85: Chapter 5 VOLUNTARY ACTION I. SECTI
Page 86 and 87: Voluntary Action it timely responde
Page 88 and 89: Voluntary Action Content owners may
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Page 92 and 93: Voluntary Action Partnerships, such
Page 94 and 95: Voluntary Action (1) Google Play Fo
Page 96 and 97: Voluntary Action Other registrars,
Page 98 and 99: Voluntary Action Notes 1. Preventin
Page 100 and 101: Voluntary Action websites. eBay rec
Page 102 and 103: Voluntary Action 80. See “What is
Page 104 and 105: Voluntary Action 116. See “Report
Page 106 and 107: Chapter 6 SUMMARY OF CONCLUSIONS Th
Page 108: Summary of Conclusions • Encourag
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Appendix It appears that this bill
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Appendix b) Statements in Oppositio
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Appendix 4. Miscellaneous Provision
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Appendix As of December 15, 2011, a
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Appendix 106 C. Online Protection a
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Appendix • Finally, costs to proc
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Appendix plenty-criticism); see als
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Appendix 49. Art Brodsky, “Public
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About the ABA Section of Intellectu
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