1oz61wa

Government Remedies
limited by U.S. District Courts personal jurisdiction, and is not bound by the Federal Rules of
Evidence.
Professor Goldman also noted that the ITC has been “gamed” in the patent world, and similar
behavior could easily emerge in the realm of copyrights and trademarks. 82 For example, a rights
owner chasing a rogue website could simultaneously pursue a domestic court action, a foreign
court action and an ITC proceeding. 83 It is unclear how these parallel proceedings would play out
in practice when U.S. courts and practitioners are still trying to resolve parallel proceeding problems
in patent matters. 84
IV.
CONCLUSION
Although it is beyond the scope of this White Paper to assess the First Amendment and Due Process
implications of COICA PIPA, and SOPA, the IPL Section believes that the law on these issues as
they pertain to the bills is, at best, ambiguous. Nevertheless the IPL Section acknowledges that the
filtering and DNS blocking provisions in those bills are clouded by legitimate concerns. Accordingly,
the IPL Section does not adopt any particular recommendation with respect to similar
provisions in new legislation.
The IPL Section nevertheless recommends that future legislation against online counterfeiting and
piracy include a public right of action that complements a private right of action. Federal government
agencies and federal courts have decades of experience in investigating and adjudicating
cases involving both online and real-world counterfeiting and piracy operations. Federal agencies
possess investigative and collaborative resources that private actors and administrative agencies do
not. The IPL Section concludes that the problem posed by Predatory Foreign Websites is one that
can only be addressed if the knowledge, experience, and investigative assets of the federal government
are brought to bear.
In light of the need for government involvement in combating counterfeiting and piracy, a public
right of action should authorize the Attorney General to take investigative action against Predatory
Foreign Websites, and allow the Department of Justice to prosecute criminally and/or undertake
civil enforcement against Predatory Foreign Websites. Congress should of course ensure that the
relevant enforcement agencies have sufficient funding to carry out this important task.
A government right of action must be properly balanced against First Amendment free speech
concerns to ensure that non-infringing speech is neither limited nor blocked. Moreover, any
remedies must carefully balance due process with intellectual property rights. The IPL Section is
confident that the contemplated legislation—allowing the federal government to pursue Predatory
Foreign websites and enjoin carefully delineated intermediaries servicing such sites—is consistent
with the preservation of an open and innovative Internet.
Notes
1. The Organization for Economic Co-Operation and Development estimates that the United States loses as
much as $250 billion to counterfeiting and piracy each year. See “Magnitude of Counterfeiting and Piracy of
Tangible Products: An Update.” OECD, at 1 (Nov. 2009) (available at http://www.oecd.org/industry/ind/
44088872.pdf). Intellectual property industries accounting for tens of millions of domestic jobs and as much as
35% of annual U.S. GDP. Economics and Statistics Administration and USPTO, “Intellectual Property and the
U.S. Economy,” Report, at vii (Mar. 2012) (available at http://www.uspto.gov/news/publications/
IP_Report_March_2012.pdf). Copyright and trademark intensive industries alone are estimated to support over
27 million jobs. Id. at vi-vii.
2. “Shutting Down Phantom Counterfeiters,” Law360 (Mar. 31, 2009) (available at http://
www.law360.com/newyork/articles/94815/shutting-down-phantom-counterfeiters); National Intellectual
Property Rights Coordination Center, “Intellectual Property Rights Violations: A Report on Threats to United
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