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Government Remedies
United States. 39 Intellectual Property-based import investigations represent one of five ways in which
the ITC fulfills its mission, but they almost solely deal with physical goods. 40 The primary remedy
available in Section 337 investigations is an exclusion order barring the importation of articles
connected to particular unfair trade practices such as patent or trademark infringement. 41 In addition,
the Commission may issue cease and desist orders against named importers and other persons. 42
a) Involvement in Online Counterfeiting and Piracy
The ITC has little if any involvement or expertise in policing online infringement. Congress
established the ITC as an independent arbiter of whether imported articles violate U.S. intellectual
property rights and therefore barred from import into the U.S. 43
Having said that, the ITC does conduct general fact-finding investigations relating to tariffs or
trade at the request of the U.S. Trade Representative, the House Committee on Ways and Means,
and the Senate Committee on Finance, 44 and these fact-finding investigations may implicate online
counterfeiting and piracy. In fact digital trade is the focus of two 2012-2014 ITC investigations. 45
b) Agency Limitations
The ITC has concluded that its jurisdiction under Section 337 includes the authority to exclude
imports of electronic data transmissions, but this determination does not extend to Internet activity.
46
As explained in more detail below, the Online Protection and Enforcement of Digital Trade Act
(“OPEN Act”) sought to expand the ITC’s jurisdiction to encompass predatory foreign website
activity.
C. Attorney General’s Right of Action under COICA, PIPA, SOPA, and OPEN
Four major bills relating to Internet piracy and counterfeiting were introduced in Congress in the
past two years, yet none have been enacted into law. The four bills include: the Combating Online
Piracy and Counterfeiting Act (COICA), the Preventing Online Threats to Economic Creativity and
Theft of Intellectual Property Act (PROTECT IP Act or PIPA), the Stop Online Piracy Act (SOPA)
and the Online Protection and Enforcement of Digital Trade Act (OPEN). Each proposal included a
government right of action as a substantial, if not primary, mechanism to combat infringement on
the Internet.
1. COCA
COICA 47 was introduced on September 20, 2010 by Senator Patrick Leahy (D-VT), and was the first
of a series of major legislative proposals designed to combat online piracy and counterfeiting. The
stated purpose of the bill was to “provide the Department of Justice, DOJ, an expedited process for
cracking down on websites that traffic in pirated goods or services.” 48 To that end, COICA would
have authorized the Attorney General to bring an in rem action directly against any domain name
that resolves to a website dedicated to infringing activities—that is, a website “designed primarily
to offer goods or services in violation of federal copyright law, or [for] selling or promoting
counterfeit goods or services.” 49 The bill required notice to and service on such websites, but did
not include any cause of action for private rightsholders. 50
COICA would have authorized federal law enforcement officers to serve court orders obtained
under the Act on three delineated intermediaries; 51
a. Internet service providers (e.g., VeriSign) 52 ;
b. Online payment processors (e.g., Visa, PayPal); and
c. Online advertisement providers (e.g., Google’s AdWords ).
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