[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[H.R. 791 Introduced in House (IH)]
<DOC>
119th CONGRESS
1st Session
H. R. 791
To amend title 17, United States Code, to provide for blocking orders
relating to specifically identified infringing foreign websites or
online services, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
January 28, 2025
Ms. Lofgren introduced the following bill; which was referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend title 17, United States Code, to provide for blocking orders
relating to specifically identified infringing foreign websites or
online services, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Foreign Anti-Digital Piracy Act or
`FADPA.'''
SEC. 2. BLOCKING ORDERS RELATING TO SPECIFICALLY IDENTIFIED INFRINGING
FOREIGN WEBSITES OR ONLINE SERVICES.
(a) In General.--Chapter 5 of title 17, United States Code, is
amended by inserting after section 502 the following:
``Sec. 502A. Blocking orders relating to specifically identified
infringing foreign websites or online services
``(a) Preliminary Order.--
``(1) Petition.--A covered person may file a petition in a
United States District Court for the issuance of a preliminary
order declaring that--
``(A) with respect to the transmission of work
protected under section 106 through a foreign website
or online service--
``(i) the transmission of such work likely
infringes the exclusive right of the covered
person under section 106 to reproduce,
distribute, publicly perform, or publicly
display such work; and
``(ii) the covered person is likely to
suffer irreparable harm as a result of such
infringement; or
``(B) with respect to the imminent transmission of
a live event on or through a foreign website or online
service--
``(i) the transmission will likely infringe
the exclusive right of the covered person under
section 106 to reproduce, distribute, publicly
perform, or publicly display such work; and
``(ii) the covered person will likely
suffer irreparable harm as a result of such
infringement.
``(2) Issuance.--The court shall issue the order described
in paragraph (1) if the court finds the following:
``(A) The petitioner includes in the petition, the
internet protocol address, a domain name, or other
similar online identifier of the foreign website or
online service identified in the petition.
``(B) The petitioner attempted to serve the
operator of the foreign website or online service
identified in the petition with notice of the action
and the petition in accordance with Rule 4 of the
Federal Rules of Civil Procedure.
``(C) With respect to each service provider the
petitioner has identified through a reasonably diligent
investigation as providing a service with respect to
the foreign website or online service identified in the
petition, the petitioner provided notice of the
infringing activity to--
``(i) the agent of service provider
designated pursuant to section 512(c)(2) to
receive notifications of claimed infringement;
or
``(ii) if the service provider does not
have such an agent, in accordance with Rule 4
of the Federal Rules of Civil Procedure.
``(D) The petitioner certifies in the petition that
after conducting a reasonably diligent investigation
based on publicly available information the
petitioner--
``(i) determines that the operator of the
foreign website or online service identified in
the petition is physically located outside of
the United States; or
``(ii) cannot determine that the operator
of the foreign website or online service is
physically located within the United States.
``(E) The foreign website or online service
identified in the petition--
``(i) is primarily designed or primarily
provided for the purpose of infringing
copyright;
``(ii) has no commercially significant
purpose or use other than infringing copyright;
or
``(iii) is intentionally marketed by or at
the direction of the operator of the foreign
website or online service to promote the use of
the website or online service in the
infringement of copyright.
``(F) Upon penalty of perjury, the Petitioner has
attested--
``(i) to the best of the knowledge of the
petitioner, to the accuracy of the assertions
of the petitioner regarding the foreign website
or online service identified in the petition,
or the operator thereof; and
``(ii) that the petition was filed with a
substantial connection to enforcing the
exclusive rights of the petition under this
title, including to protect economic interests
derived from such rights.
``(3) Non-issuance of preliminary order.--A court may not
issue the order described under paragraph (1) if the court
finds that--
``(A) the infringement of the petitioner's
exclusive right by the foreign website or online
service has ceased entirely; and
``(B) there is not a reasonable possibility that
such infringing activity will resume.
``(4) Contesting the preliminary order.--Not later than 30
days after a petition described under paragraph (1) is filed,
the operator of the foreign website or online service
identified in such petition may appear and contest the issuance
of the order concerned.
``(5) Appointment of master to assist court.--
``(A) Appointment.--If the operator of a foreign
website or online service identified in a petition
filed under paragraph (1) does not appear and contest
the issuance of the preliminary order pursuant to
paragraph (4), the Court may, in its discretion,
appoint a master pursuant to Rule 53 of the Federal
Rules of Civil Procedure to assist in determining
whether the criteria in paragraph (2) have been
satisfied for the purpose of issuing such order.
``(B) Authorities.--The master may gather and
review publicly available information relating to
whether the criteria in paragraph (2) have been
satisfied.
``(C) No effect on proceedings.--The appointment of
a master shall not unduly delay the proceedings or
impose excessive costs on the court or the petitioner.
``(6) Time for issuing petition.--The court shall determine
whether to issue an order on the basis of a petition filed
under paragraph (1), or deny such order--
``(A) following the timely filing of an opposition
and a 14-day period for reply;
``(B) after the period for filing an opposition has
expired; or
``(C) in the case that the petitioner is alleging
that irreparable harm will likely occur as a result of
the imminent transmission of a live event or ongoing
unauthorized transmission of a live event is occurring,
on an expedited basis that effectively addresses the
imminent or continuing harm identified in the petition.
``(7) Imminent transmission of a live event.--In the case
that the petitioner is alleging that irreparable harm will
likely occur as a result of the imminent transmission of a live
event by a foreign website or online service or ongoing
unauthorized transmission of a live event is occurring by a
foreign website or online service, the court may issue an order
under this subsection on an exparte basis with respect the
transmission.
``(b) Blocking Orders To Prevent Access to Foreign Website or
Online Service.--
``(1) In general.--
``(A) Motion.--At any time after a court has issued
an order pursuant to subsection (a), the petitioner may
move for an order directing each service provider that
received notice of the order under subsection (a) to
take reasonable and technically feasible measures to
prevent users of the service provided by the service
provider from accessing the foreign website or online
service identified in the order.
``(B) Notice.--The petitioner shall serve both the
applicable order and motion on each such service
provider.
``(C) Other courts.--If the court that issues the
order pursuant to subsection (a) does not have
jurisdiction over a service provider, the petitioner
may institute a miscellaneous action and file the
motion described under subparagraph (A) with any court
of the United States that has jurisdiction over such
service provider.
``(2) Issuance of order.--
``(A) Court determination before granting order.--
The court may not issue an order under paragraph (1)
unless the court determines that implementation of the
order will not--
``(i) interfere with user access to non-
infringing material on another website or
online service;
``(ii) significantly burden the service
provider, including the operation of the system
or network of the service provider; or
``(iii) disserve the public interest.
``(B) Terms and conditions of order.--Any order
under subsection (b)(1) shall--
``(i) require the service provider to
comply with the order--
``(I) with respect to an order that
does not relate to the imminent public
performance of a live event--
``(aa) not later than 15
days after the order is issued;
or
``(bb) not later than 20
days after the order is issued
if the court finds good cause
has been shown for such an
extension; and
``(II) with respect to an order
that relates to the imminent public
performance of a live event, by a date
after the order is issued--
``(aa) that takes into
account--
``(AA) the imminent
nature of the
infringement;
``(BB) the
capabilities of the
service provider; and
``(CC) what is
technically feasible
for the service
provider; and
``(bb) that is not later
than 7 days after the order is
issued; and
``(ii) expire with respect to a service
provider--
``(I) except as provided in
subclauses (II) and (III), 12 months
after the service provider is served
under subsection (b)(1), unless the
expiration date is extended by the
issuing court pursuant to paragraph
(6);
``(II) if the order relates to the
public performance of one live event,
48 hours after the conclusion of the
public performance of the live event;
or
``(III) if the order relates to the
public performance of more than one
live event, 48 hours after the
conclusion of the public performance of
the final live event covered in the
order.
``(C) Limitation.--An order issued under this
subsection may not--
``(i) prescribe any specific technical
measures to be used or other actions to be
taken by a service provider to comply with such
order; or
``(ii) require a service provider to take
an action that would prevent a user of the
service provided by the service provider from
using a virtual private network.
``(3) Amending order to add additional service providers.--
``(A) Motion.--At any time after the issuance of an
order under this subsection, the petitioner may move to
amend the order to apply to one or more additional
service providers--
``(i) over which the court has
jurisdiction; and
``(ii) that the petitioner has identified
through a reasonably diligent investigation as
providing a service with respect to the foreign
website or online service identified in the
petition, the petitioner provided notice of the
infringing activity to--
``(I) the agent of service provider
designated pursuant to section
512(c)(2) to receive notifications of
claimed infringement; or
``(II) if the service provider does
not have such an agent, in accordance
with Rule 4 of the Federal Rules of
Civil Procedure.
``(B) Contents of motion.--The motion to amend
shall--
``(i) explain why each service provider
named in the motion was not included in the
order initially; and
``(ii) be served on each service provider
named in the motion.
``(C) Opposition to motion.--Any service provider
served with a motion to amend under subparagraph (B)
may appear and oppose the motion not later than 20 days
after the date on which such service provider was
served such motion.
``(D) Review of motion.--The Court may not amend
the order to apply to an additional service provider
unless the court makes the determination described
under paragraph (2)(A) with respect to such service
provider.
``(E) Expiration of order.--The order shall expire
with respect to any additional service providers
included in the order pursuant to this paragraph on
which the order expires for the last service provider
described under paragraph (2) is served pursuant to
subsection (b)(1).
``(4) Amending order to add additional domain names or
internet protocol addresses.--Unless otherwise determined by a
court when granting the order, a court may, upon motion by the
petitioner, amend such order to include additional domain names
or internet protocol addresses if it determines that the
foreign website or online service that is the subject of the
order--
``(A) remains accessible or has been reconstituted
at a different domain name or internet protocol address
than those included in the petition filed under
subsection (a), rendering the initial order
ineffective; or
``(B) has engaged in circumvention techniques that
render the initial order ineffective.
``(5) Implementation of the order.--
``(A) Review.--In determining whether a service
provider has complied with an order under this
subsection, the court shall limit its review to
determining whether the measures used, or actions taken
or not taken by the service provider to implement such
order were unreasonable or taken in bad faith to avoid
complying with the order.
``(B) Modification.--If a service provider, in the
course of implementing an order issued under this
subsection, prevents a user of the service provided by
the service provider from accessing a website or online
service other than the foreign website or online
service identified in the order, the operator of such
other website or online service may file a motion with
the court to modify the order so the user may access
the other website or online service.
``(C) Temporary suspension of implementation.--A
service provider subject to an order issued under this
subsection shall not be in violation of such order if
the service temporarily removes any measures put in
place to prevent access to a foreign website or online
service--
``(i) when reasonably necessary to correct
or investigate whether the implementation of
the order by the service provider is preventing
access to a website or online service other
than the foreign online website or online
service identified in the order; or
``(ii) to maintain the integrity or quality
of the network or operations of the service
provider.
``(D) Cost.--Upon a motion by a service provider
served with an order issued under subsection (c) that
includes a detailed list of reasonable marginal costs
and expenses (except for capital expenditures, costs
and expenses incurred with respect to infrastructure,
and attorney fees) directly incurred by the service
provider to implement and comply with the order, the
court that issued such order may require the petitioner
to pay such costs and expenses.
``(6) Extension of order.--
``(A) In general.--At any time prior to the
expiration of an order not related to the public
performance of a live event issued under this
subsection, or any extension thereof, the petitioner
may move to extend such order for an additional period
not exceeding 12 months.
``(B) Grant.--The court shall grant the motion
under subparagraph (A) if the court finds that during
the period of such order--
``(i) the operator of the foreign website
or online service has not ceased transmitting
such work that is the subject of the motion;
``(ii) the transmission of such work likely
infringes the exclusive of right of the covered
person under section 106 to reproduce,
distribute, publicly perform, or publicly
display such work; and
``(iii) the petitioner is likely to suffer
irreparable harm as a result of such
infringement.
``(7) Transparency of orders.--
``(A) Availability through publicly accessible
website.--With respect to an order issued under this
subsection by a court, the court that issued such order
shall make available through a publicly accessible
website and without undue delay after the issuance of
the order (or any amendment to such order)--
``(i) the order;
``(ii) the name of the petitioner;
``(iii) each foreign website or online
service identified in the order, including the
domain names and internet protocol addresses of
each such website or online service;
``(iv) the date on which the order was
issued;
``(v) the duration of the order, including
the expiration date; and
``(vi) a summary of the findings of the
court under subsection (a)(2) with respect to
the order.
``(B) Limitation.--If the court determines that
disclosure of certain information would render the
order ineffective, pose a significant risk to national
security, personal safety, or an ongoing law
enforcement investigation, the court may order that
such information be redacted from the publicly
available documents.
``(8) Service provider immunity.--
``(A) In general.--In the case that the court that
issues an order under this section determines in
accordance with paragraph (5)(A) that a service
provider that is in compliance with such order, the
service provider may not be held liable for the
following:
``(i) Any injury alleged by a foreign
website or online service, or the users of such
website or online service, to have occurred as
a result of measures or other actions taken to
implement such order with respect to such
website or online service.
``(ii) Any injury alleged by a foreign
website or online service, or the users of such
website or online service, to have occurred as
a result of measures or other actions taken or
not taken in good faith by such service
provider to implement such order with respect
to such website or online service based on
information provided to such service provider
under this subsection.
``(iii) Any injury alleged by an operator
of a foreign website or online service
identified in the order resulting from actions
taken or not taken in good faith by such
service provider to implement such order,
regardless of any subsequent determination that
such specific website or service was
inaccurately identified in such order and does
not meet the criteria described in subsection
(a)(2).
``(iv) With respect to the foreign website
or online service that is the subject of such
order, a claim of copyright infringement
against such service provider initiated on or
after the date of enactment of FADPA by the
copyright owner that obtained such order, to
the extent such claim is based on the role of
such service provider in providing access to
such website or online service before the date
of the enactment of FADPA.
``(B) Inadmissibility.--The issuance of an order
under this subsection that identifies a service
provider, or a finding that a service provider has
complied with an order issued under this subsection,
may not be admitted into evidence to support an
allegation that such service provider has engaged in
infringement of copyright in any action brought by any
party in United States District Court.
``(C) Rule of construction.--Nothing in this
paragraph may be construed as limiting the authority of
the court to--
``(i) determine whether a service provider
is in compliance with an order issued pursuant
to this subsection; or
``(ii) to compel compliance with such
order.
``(c) Relationship to Section 512(a) Immunity.--A service provider
identified in an order under this section may not lose liability
protection under section 512(a) on the basis of such identification.
``(d) Rule of Construction.--Except as explicitly provided in this
section, nothing in this section may be construed as affecting the
interpretation or application of any provision of section 512;
``(e) Definitions.--In this section:
``(1) Covered person.--The term `covered person' means a
copyright owner or an exclusive licensee of a copyright owner.
``(2) Broadband provider.--The term `broadband provider'
means a provider of broadband internet access service, as
defined in section 8.1(b) of title 47, Code of Federal
Regulations (or any successor regulation)--
``(A) that provides such service to 100,000 or more
subscribers; and
``(B) is subject to or consents to the jurisdiction
of the court.
``(3) Foreign website or online service.--The term `foreign
website or online service' means a website or online service
operated by a foreign person.
``(4) Foreign person.--The term `foreign person' means an
individual--
``(A) physically located outside of the United
States; or
``(B) whose physical location cannot be determined
to be within the United States.
``(5) Live event.--The term `live event' means an event
that is performed publicly (such as a concert, sporting event,
or award show)
``(6) Public domain name resolution services.--The term
`public domain name resolution services' means domain name
resolution services that are accessible to the general public.
``(7) Service provider.--The term `service provider'--
``(A) means--
``(i) a broadband provider, and
``(ii) a provider of public domain name
resolution services that has an annual revenue
of over $100 million; and
``(B) does not include--
``(i) service providers that provide domain
name system resolution functions or services
exclusively through encrypted DNS protocols; or
``(ii) service providers that exclusively
provide virtual private network (VPN) services,
or similar services that encrypt and route user
traffic through intermediary servers; or
``(iii) an operator of a premises, such as
a coffee shop, bookstore, airline, private end-
user network, library, or university, that
acquires broadband internet access service from
a provider or entity described under
subparagraph (A) to enable patrons of the
premises to access broadband internet service
from the premises.
``(8) Transmission of a live event.--The term `transmission
of a live event' means the digital transmission of a live
event--
``(A) simultaneously or nearly simultaneously with
the live occurrence or public performance of the event;
and
``(B) for a commercial purpose.
``(i) `digital transmission' includes, but
is not limited to, transmission by satellite
broadcasting.
``(9) Virtual private network.--The term `virtual private
network' means a service that establishes an encrypted
connection between a device and a remote server that--
``(A) routes the internet traffic of the user of
such device through the remote server; and
``(B) masks the internet protocol address of such
user.
``(10) Website or online service.--The term `website or
online service' means a website or uniquely identifiable online
location that is--
``(A) accessible to the public within the United
States; and
``(B) identifiable by a single internet protocol
address, a domain name, or other similar online
identifier.''.
(b) Effective Date.--This Act, and the amendment made by subsection
(a), shall take effect on the date that is six months after the date of
the enactment of this Act.
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