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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
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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