STREAMING INFRINGEMENT
Te PROTECT-IP Act applies to websites that have no significant use other than to engage in, enable, or facilitate the infringing reproduction, distribution, and public performance of copyrighted works. It is limited to websites with ‘non-domestic domain names,’ i.e. domain names whose top level domain registry and registrar are located outside the US. Te PROTECT-IP Act would permit the US Department of Justice to commence an action against the registrant of the domain of such website or the owner or operator of such website, or if the registrant, owner or operator cannot be found in the US, as an in rem action against the domain name. In such an action, a court would be authorised to issue a court order with a temporary restraining order, a preliminary injunction, or a final injunction against the domain name of such website, its registrant, or the owner or operator of such website provided that the domain name is used within the US to access such website and such website conducts business directed to US residents and harms holders of US intellectual property rights.
Rather than concentrating only on the source of infringing streams, the PROTECT-IP Act also targets their recipients by cutting off the websites’ relationships with crucial third party service providers: operators of non-authoritative domain name servers that are necessary for proliferating the websites, financial service providers, Internet advertising service providers, and information locator tools, i.e. search engines. It does so by permitting the court order to be served on such entities if they had been identified in the action, in which case the served entity would have the following specific obligations: (i) operators of non-authoritative domain name system servers would be obliged to take the least burdensome technically feasible
“RATHER THAN CONCENTRATING ONLY ON THE SOURCE OF INFRINGING STREAMS, THE PROTECT-IP ACT ALSO TARGETS THEIR RECIPIENTS BY CUTTING OFF THE WEBSITES’ RELATIONSHIPS WITH CRUCIAL THIRD PARTY SERVICE PROVIDERS.”
and reasonable measures to prevent the domain name of the infringing website from resolving to such website’s Internet protocol address; (ii) financial transaction providers would be obliged to take reasonable measures to prevent, prohibit, or suspend any payment transactions involving US customers and such website; (iii) Internet advertising services would be obliged to take technically feasible and reasonable measures to prevent providing, or to cease making available, advertising to or for, or sponsored search results, links, or other placements providing access to, such website; and (iv) search engines would be obliged to take technically feasible and reasonable measures to remove or disable access or serve a link to such website.
Te PROTECT-IP Act would offer a similar process and remedies to copyright owners whose copyrights have been infringed by such offshore websites, except that service of the court order, and requiring compliance therewith as described above, would be limited to financial transaction providers and Internet advertising providers.
Both SB 978 and the bill for the PROTECT-IP Act are currently pending in the US Senate. To become law, the bills have to be passed by the US Senate as well as the US House of Representatives and then signed by the president. In view of the current political climate, it is unclear whether the bills will receive a hearing or a vote, and their future in the current Congress is in question. Te bills were also received with sharp criticism in the Internet community. Nevertheless, they represent a step in the right direction to address a vexing problem for copyright owners that will
34 World Intellectual Property Review November/December 2011
only grow in the future, where content will be provided increasingly by streaming. Tese bills may also serve as a signal to other countries to address the issue. Eventually, however, the international community must formulate a common approach. As long as the majority of countries do not have coordinated enforcement mechanisms, infringers can seek safe harbours in offshore areas and continue streaming copyright infringing material with impunity. n
Heiko Burow is of counsel at Baker & McKenzie LLP. He can be contacted at:
heiko.burow@bakermckenzie.com
Heiko Burow advises clients on patent, trademark and copyright matters, including the protection of intellectual property assets and infringement assessments. He likewise handles licensing and acquisition transactions, as well as agreements for the development, transfer or licensing of soſtware. In addition, he assists clients with international business transactions— including service, distribution and licensing agreements, particularly those involving European countries. He is a qualified lawyer in Texas, Oklahoma, and Germany.
www.worldipreview.com
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