SOPA Manager's Amendment
As Amended on December 15 and 16, 2011

Amendment in the Nature of a Substitute to HR 3261, the "Stop Online Piracy Act",
offered by Rep. Lamar Smith (R-TX) at the House Judiciary Committee (HJC) mark up session on December 15, 2011.

Notes:
 • Tech Law Journal converted a PDF copy of the manager's amended released by the House of Representative to HTML.
 • Pagination, line numbering and double spacing were eliminated in the conversion.
 • This document reflects amendments approved during mark up on December 15 and 16, 2011. Deleted language is shown in strikethrough. Added language is shown in red. TLJ notes are in boxes to the right of the changes.
 • Published December 20, 2011.



AMENDMENT IN THE NATURE OF A SUBSTITUTE

TO H.R. 3261

OFFERED BY MR. SMITH OF TEXAS

Strike all after the enacting clause and insert the following:

SEC. 1. SHORT TITLE; TABLE OF CONTENTS.

(a) SHORT TITLE.—This Act may be cited as the ‘‘Stop Online Piracy Act’’.

(b) TABLE OF CONTENTS.—The table of contents of this Act is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Savings and severability clauses.

TITLE I—COMBATING ONLINE PIRACY

Sec. 101. Definitions.
Sec. 102. Action by Attorney General to protect U.S. customers and prevent U.S. support of foreign infringing sites.
Sec. 103. Protection of U.S. customers and prevention of U.S. funding of sites dedicated to theft of U.S. property.
Sec. 104. Effect of orders served on third-party entities.
Sec. 105. Actions taken consistent with the purposes of this title.
Sec. 106. Guidelines and study.

TITLE II—ADDITIONAL ENHANCEMENTS TO COMBAT INTELLECTUAL PROPERTY THEFT

Sec. 201. Streaming of copyrighted works in violation of criminal law.
Sec. 202. Trafficking in inherently dangerous goods or services.
Sec. 203. Protecting U.S. businesses from foreign and economic espionage.
Sec. 204. Denying U.S. capital to notorious foreign infringers.
Sec. 205. Defending intellectual property rights abroad.

SEC. 2. SAVINGS AND SEVERABILITY CLAUSES.

(a) SAVINGS CLAUSES.—

(b) SEVERABILITY.—If any provision of this Act, or the application of the provision to any person or circumstance, is held to be unconstitutional, the other provisions or the application of the provision to other persons or circumstances shall not be affected thereby.

(c) DEFINITIONS.—The terms used in this section have the meanings given those terms in section 101.

TITLE I—COMBATING ONLINE PIRACY

SEC. 101. DEFINITIONS.

In this title:

(1) DOMAIN NAME.—The term ‘‘domain name’’ has the meaning given that term in section 45 of the Lanham Act (15 U.S.C. 1127).

(2) DOMAIN NAME SYSTEM SERVER.—The term ‘‘domain name system server’’ means a server or other mechanism used to provide the Internet protocol address associated with a domain name.

(3) DOMESTIC DOMAIN NAME.—The term ‘‘domestic domain name’’ means a domain name that is registered or assigned by a domain name registrar, domain name registry, or other domain name registration authority, that is located within a judicial district of the United States.

(4) DOMESTIC INTERNET PROTOCOL ADDRESS.—The term ‘‘domestic Internet Protocol address’’ means an Internet Protocol address for which the corresponding Internet Protocol allocation entity and the entity using the Internet Protocol address are located within a judicial district of the United States.

(5) DOMESTIC INTERNET SITE.—The term ‘‘domestic Internet site’’ means an Internet site for which the corresponding domain name or, if there is no domain name, the corresponding Internet Protocol address, is a domestic domain name or domestic Internet Protocol address.

(6) FOREIGN DOMAIN NAME.—The term ‘‘foreign domain name’’ means a domain name that is not a domestic domain name.

(7) FOREIGN INTERNET PROTOCOL ADDRESS.—The term ‘‘foreign Internet Protocol address’’ means an Internet Protocol address that is not a domestic Internet protocol address.

(8) FOREIGN INTERNET SITE.—The term ‘‘foreign Internet site’’ means an Internet site that is not a domestic Internet site.

(9) INTELLECTUAL PROPERTY ENFORCEMENT COORDINATOR.—The term ‘‘Intellectual Property Enforcement Coordinator’’ means the Intellectual Property Enforcement Coordinator appointed under section 301 of the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (15 U.S.C. 8111).

(10) INTERNET.—The term ‘‘Internet’’ has the meaning given that term in section 5362(5) of title 31, United States Code.

(11) INTERNET ADVERTISING SERVICE.—The term ‘‘Internet advertising service’’ means a service that for compensation sells, purchases, brokers, serves, inserts, verifies, or clears the placement of an advertisement, including a paid or sponsored search result, link, or placement, that is rendered in viewable form for any period of time on an Internet site.

(12) INTERNET PROTOCOL.—The term ‘‘Internet Protocol’’ means a protocol used for communicating data across a packet-switched internetwork using the Transmission Control Protocol/Internet Protocol, and includes any predecessor or successor protocol to such protocol.

(13) INTERNET PROTOCOL ADDRESS.—The term ‘‘Internet Protocol address’’ means a numerical or hexadecimal label that is assigned to each device that participates in a computer network that uses the Internet Protocol for communication.

(14) INTERNET PROTOCOL ALLOCATION ENTITY.—The term ‘‘Internet Protocol allocation entity’’ means the American Registry of Internet Numbers (ARIN), its successor (if any), or any Internet Protocol Internet registry that is formally recognized by the United States Government, from which an Internet Protocol address is allocated or where it is registered.

(15) INTERNET SEARCH ENGINE.—The term ‘‘Internet search engine’’—

(16) INTERNET SITE.—The term ‘‘Internet site’’ means the collection of digital assets, including links, indexes, or pointers to digital assets, accessible through the Internet that are addressed relative to a common domain name or, if there is no domain name, a common Internet Protocol address. Except where otherwise provided in this title, the term ‘‘Internet site’’ may include a specifically identified portion of such site.

(17) LANHAM ACT.—The term ‘‘Lanham Act’’ means the Act entitled ‘‘An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes’’, approved July 5, 1946 (commonly referred to as the ‘‘Trademark Act of 1946’’ or the ‘‘Lanham Act’’).

(18) NONAUTHORITATIVE DOMAIN NAME SERVER.—The term ‘‘nonauthoritative domain name server’’ means a server that does not contain complete copies of domains but uses a cache file that is comprised of previous domain name server lookups, for which the server has received an authoritative response in the past.

(19) OPERATOR.—The term ‘‘operator’’, when used in connection with an Internet site, includes any person with authority to operate such Internet site.

(20) PAYMENT NETWORK PROVIDER.—

(21) SERVICE PROVIDER.—The term ‘‘service provider’’—

(22) STATE.—The term ‘‘State’’ includes the District of Columbia and any commonwealth, territory, or possession of the United States.

(23) U.S. DIRECTED SITE.—The term ‘‘U.S.-directed site’’ means a foreign Internet site that is used to conduct business directed to residents of the United States, or that otherwise demonstrates the existence of minimum contacts sufficient for the exercise of personal jurisdiction over the owner or operator of the Internet site consistent with the Constitution of the United States, based on relevant evidence that may include whether—

(24) UNITED STATES.—The term ‘‘United States’’ includes any commonwealth, possession, or territory of the United States.

SEC. 102. ACTION BY ATTORNEY GENERAL TO PROTECT U.S. CUSTOMERS AND PREVENT U.S. SUPPORT OF FOREIGN INFRINGING SITES.

(a) DEFINITION.—For purposes of this section, a foreign Internet site is a ‘‘foreign infringing site’’ if—

(b) ACTION BY THE ATTORNEY GENERAL.—

(c) ACTIONS BASED ON COURT ORDERS.—

(d) MODIFICATION OR VACATION OF ORDERS.—

(e) AMENDED ORDERS.—The Attorney General, if alleging that a foreign Internet site previously adjudicated in an action under this section to be a foreign infringing site is accessible or has been reconstituted at a different domain name or Internet Protocol address, may petition the court to amend the order issued under this section accordingly.

(f) SERVICE OF AND ACTION BASED ON MODIFIED, SUSPENDED, VACATED, OR AMENDED ORDERS.—

(g) LAW ENFORCEMENT COORDINATION.—

SEC. 103. PROTECTION OF U.S. CUSTOMERS AND PREVENTION OF U.S. FUNDING OF SITES DEDICATED TO THEFT OF U.S. PROPERTY.

(a) DEFINITIONS.—In this section:

(b) LIMITED INJUNCTIVE RELIEF.—

(c) ACTIONS BASED ON COURT ORDERS.—

(d) MODIFICATION OR VACATION OF ORDERS.—

(e) AMENDED ORDERS.—The qualifying plaintiff, if alleging that an Internet site previously adjudicated in an action under this section to be an Internet site dedicated to theft of U.S. property is accessible or has been reconstituted at a different domain name or Internet Protocol address, may petition the court to amend the order issued under this section accordingly.

(f) SERVICE OF AND ACTION BASED ON MODIFIED, SUSPENDED, VACATED, OR AMENDED ORDERS.—

(f) REPORTING OF ORDERS.—

SEC. 104. EFFECT OF ORDERS SERVED ON THIRD-PARTY ENTITIES.

 
TLJ Note: This change was made by an amendment offered by Rep. Goodlatte (TLJ No. 25), approved by a vote of 22-5 on December 16.
   

(a) RELIEF LIMITED TO SCOPE OF VIOLATION.—In any case in which only a specifically identified portion of an Internet site is identified by the court as a foreign infringing site or as an Internet site dedicated to theft of U.S. property, and made subject to an order under section 102(b)(5) or 103(b)(5), the relief granted under such subsection, and the obligations of any entity served with a copy of an order under section 102(c) or 103(c), shall be confined to that specified portion so identified and made subject to the order. Nothing in the order shall be interpreted to impose obligations on any entity served with a copy of the order with respect to any other portion of an Internet site not specified in the order.

(a) RELIEF LIMITED TO SCOPE OF VIOLATION.—

(b) LIMITATIONS RELATING TO COURT ORDERS.—

SEC. 105. ACTIONS TAKEN CONSISTENT WITH THE PURPOSES OF THIS TITLE.

(a) IN GENERAL.—No cause of action shall lie in any Federal or State court or administrative agency against, no person may rely in any claim or cause of action against, and no liability for damages to any person shall be granted against, a service provider, payment network provider, Internet advertising service, advertiser, Internet search engine, domain name registry, domain name registrar, entity described in section 101(20)(B), or Internet Protocol Allocation entity, including any director, officers, employees, or agents of any such entity, only for taking the actions described in section 102(c)(2) or section 103(c)(2) with respect to an Internet site, acting in good faith and based on credible evidence, that—

(c) DEFINITIONS.—In this section:

SEC. 106. GUIDELINES AND STUDY.

(a) GUIDELINES.—The Attorney General shall—

(b) STUDY.—

 
TLJ Note: This change was made by an amendment offered by Rep. Polis (TLJ No. 24), approved by voice vote on December 15.
   

SEC. 107. STATE DEPARTMENT REPORT.

Not later than 2 years after the date of enactment of this Act, the Secretary of State shall publish a report on the use of tools in other nations to block Internet access, including domain name blocking and redirection and search filtering, or to deny access to financial payment providers or Internet advertising. The report shall include--

TITLE II—ADDITIONAL ENHANCEMENTS TO COMBAT INTELLECTUAL PROPERTY THEFT

SEC. 201. STREAMING OF COPYRIGHTED WORKS IN VIOLATION OF CRIMINAL LAW.

(a) TITLE 17 AMENDMENTS.—Section 506(a) of title 17, United States Code, is amended to read as follows:

(b) TITLE 18 AMENDMENTS.—Section 2319 of title 18, United States Code, is amended—

(c) RULE OF CONSTRUCTION.—Any person acting with a good faith reasonable basis in law to believe that the person’s conduct is lawful shall not be considered to have acted willfully for purposes of the amendments made by this section. Such person includes, but is not limited to, a person engaged in conduct forming the basis of a bona fide commercial dispute over the scope of existence of a contract or license governing such conduct where such person has a reasonable basis in law to believe that such conduct is noninfringing. Nothing in this subsection shall affect the application or interpretation of the willfulness requirement in any other provision of civil or criminal law.

SEC. 202. TRAFFICKING IN INHERENTLY DANGEROUS GOODS OR SERVICES.

Section 2320 of title 18, United States Code, is amended—

SEC. 203. PROTECTING U.S. BUSINESSES FROM FOREIGN AND ECONOMIC ESPIONAGE.

(a) FOR OFFENSES COMMITTED BY INDIVIDUALS.—Section 1831(a) of title 18, United States Code, is amended, in the matter after paragraph (5)—

(b) FOR OFFENSES COMMITTED BY ORGANIZATIONS.—Section 1831(b) of such title is amended by striking ‘‘$10,000,000’’ and inserting ‘‘not more than the greater of $10,000,000 or 3 times the value of the stolen trade secret to the organization (including expenses for research and design or other costs of reproducing the trade secret that the organization has thereby avoided)’’.

SEC. 204. DENYING U.S. CAPITAL TO NOTORIOUS FOREIGN INFRINGERS.

(a) IDENTIFICATION AND RECOMMENDATIONS REGARDING NOTORIOUS FOREIGN INFRINGERS.—

(b) REPORT TO CONGRESS.—The Intellectual Property Enforcement Coordinator shall, not later than 6 months after the date of the enactment of this Act, submit to the Committees on the Judiciary of the House of Representatives and the Senate a report that includes the following:

SEC. 205. DEFENDING INTELLECTUAL PROPERTY RIGHTS ABROAD.

(a) RESOURCES TO PROTECT INTELLECTUAL PROPERTY RIGHTS.—

(b) NEW APPOINTMENTS.—

(c) PRIORITY ASSIGNMENTS.—

(d) TRAINING.—The Secretary of State and the Secretary of Commerce shall ensure that each intellectual property attaché appointed under subsection (b) is fully trained for the responsibilities of the position before assuming duties at the United States embassy or diplomatic mission to which the attaché is assigned.

(e) COORDINATION.—The activities of intellectual property attachés under this section shall be determined in consultation with the Intellectual Property Enforcement Coordinator. The Director shall assist in coordinating the policy priorities and activities of the intellectual property attachés and oversee administrative and personnel matters.

(f) TRAINING AND TECHNICAL ASSISTANCE.—

(g) ACTIVITIES IN OTHER COUNTRIES.—In the case of countries that are not identified under section 182(a)(1) of the Trade Act of 1974, the activities of Federal departments and agencies with respect to intellectual property rights in those countries, intellectual property programs and outreach of the United States Government in those countries, and training and technical assistance programs of the United States Government relating to intellectual property in those countries may be conducted to the extent they are consistent with compelling commercial or foreign policy interests of the United States.

(h) REPORTS TO CONGRESS.—The Intellectual Property Enforcement Coordinator shall include in the annual report submitted under section 314 of the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (15 U.S.C. 8114) on the activities of the advisory committee established under section 301 of that Act (15 U.S.C. 8111) information on the appointment, designation for assignment, and activities of all intellectual property attachés of any Federal department or agency who are serving abroad.

(i) DEFINITIONS.—In this section:

(j) AUTHORIZATION OF APPROPRIATIONS.—The Secretary of State and the Secretary of Commerce shall provide for the training and support of the intellectual property attachés appointed under subsection (b) using existing resources.