1oz61wa

Chapter 4
The Act would not have established a program of secondary liability against such intermediaries,
rendering them susceptible to criminal or civil charges. Rather, these intermediaries would have
only been enjoined to undertake certain remedial actions toward, or discontinue conducting
business with a Predatory Foreign Website.
Specifically, online payment processors and advertisement providers could have been required to
stop providing of their services to a Predatory Foreign Website, thereby depriving the site of
revenue. This indirect enforcement method was seen as a means of overcoming the jurisdictional
barriers that prevent legal action against some of the world’s most egregious online infringers.
Internet service providers, meanwhile, would have been required to take technically feasible and
reasonable steps to prevent a domain name used by a Predatory Foreign Website from resolving to
that domain name’s IP address. This would have blocked user access to the website in the United
States, but not in foreign territories. While this requirement was perceived by some as draconian, it
was likely motivated by the fact that many Predatory Foreign Websites, particularly those engaged
in distribution of copyrighted digital content, do rely on access to the large number of US users.
A key COICA provision—eventually removed by an amendment—called for the Attorney General
to maintain a public list of websites that the Department of Justice determines “upon information
and reasonable belief” to be dedicated to infringing activities, but for which no action has been
filed. 53 Intermediaries would have received immunity in taking action against websites placed on
the list.
58
2. PIPA
PIPA 54 was introduced by Sen. Leahy in May 2011 as a proposed improvement upon the COICA
bill, which failed to pass during the 111 th Congress. In contrast to COICA, which authorized the
Attorney General to seek injunctive relief only in rem against domain names used by Predatory
Foreign Websites, PIPA would have also authorized the Attorney General to seek injunctive relief
in personam against the owners and operators of Predatory Foreign Websites. 55
PIPA also expanded upon the types of intermediaries subject to court orders under COICA. In
addition to Internet service providers (or “Operators… of nonauthoritative domain system servers”
in the parlance of PIPA 56 ), financial transaction providers and Internet advertising services, PIPA
would have permitted court orders to be served on information location tools (i.e. search engines,
such as Google or Bing). 57 If served with a court order, a search engine would have been required
to de-index a Predatory Foreign Website from its search results. 58
Unlike its predecessor, PIPA provided copyright and trademark rightsholders with a private cause of
action. In one sense, the private cause of action was more expansive than the government cause of
action, as it was available against both Predatory Foreign Websites and domestic websites dedicated
to infringing activity. 59 But in another important respect, the private cause of action was
much more limited. Although both private rightsholders and the Attorney General would have been
authorized to serve court orders on financial transaction providers and Internet advertising services,
only the Attorney General was authorized to serve court orders on Operators and Information
Location Tools. 60
This dichotomy was apparently designed in recognition that the Attorney General is better
incented to consider and protect the many interests that could be affected by court orders to
operators and information location tools. 61 Because service providers and search engines could
have been asked to block access to information, raising the specter of censorship, it was perhaps
appropriate to reserve orders against these intermediaries to the discretion of the Attorney General,
who must exercise prosecutorial discretion in doing so.