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THE PROTECT IP ACT: Ensuring Due Process Rights
Jan 17, 2012 (Congressional Documents and Publications/ContentWorks via COMTEX) --
The PROTECT IP Act: Combating Online Infringement
Creating American Jobs, Promoting America's Economy, Protecting American Consumers
FACT: No action is required by the PROTECT IP Act without a court order, and no part of the PROTECT IP Act allows a court to issue an order against a website without providing the same due process provided in any federal court action.
The PROTECT IP Act provides for due process.
The PROTECT IP Act allows law enforcement and rights holders to seek relief from a Federal district court against websites that are dedicated to infringing activities. This authority is critical in combating websites that steal American intellectual property. While promoting strong enforcement, the PROTECT IP Act recognizes the importance of affording due process rights to the owner or operator of a site named in an action. The Act contains important safeguards to ensure these rights are properly afforded to owner/operators and third parties affected by a court order.
Once law enforcement or a qualified rights holder begins action under the PROTECT IP Act, they must notify the website's registrant of the alleged violation and of their intent to proceed. Notice must be sent to the best available postal or email address, or in any other form the court finds necessary, including in the manner provided to serve individuals in foreign countries under the Federal Rules of Civil Procedure.
If the registrant cannot be found, an action may be brought against the domain name itself, in a process that is modeled on the Anti-Cybersquatting Consumer Protection Act.
The PROTECT IP Act implements the same process that is used in the issuance of other injunctions.
Contrary to the claim of some critics, the process for receiving an injunction against a rogue website under the PROTECT IP Act is identical to the process for obtaining an injunction under current law. Rule 65 of the Federal Rules of Civil Procedure governs the granting of injunctions by federal courts, and requires that the defendant be notified before issuing an injunction (although the court may issue an ex parte temporary restraining order if the plaintiff is able to show that such temporary relief is necessary). The PROTECT IP Act explicitly incorporates Rule 65 to ensure that the same rules governing the granting of injunctions apply to injunctions granted under the PROTECT IP Act.
What Happens After an Injunction Issues: After an injunction issues, the website registrant and other parties affected by the injunction may petition the court to modify, suspend or vacate the order at any time. The PROTECT IP Act allows for relief if the court determines that the website is no longer or never was dedicated to infringing activities, or the interests of justice require it. As a result, even an owner/operator who failed to participate in an initial proceeding can petition the court to dissolve the order against his or her site at a later date.
Support for the PROTECT IP Act
"I am writing on behalf of the members of the Fraternal Order of Police to advise you of our support for S. 968, the [PROTECT IP] Act, which would strengthen the ability of the United States to take action against foreign 'rogue' websites that traffic in counterfeit and pirated products. These criminal sites threaten the health and safety of our members and the public we are sworn to protect." - Chuck Canterbury, President, Fraternal Order of Police, October 21, 2011
"The proliferation of counterfeit products being sold in the United States places demands on law enforcement's detection and enforcement efforts that are already overburdened with fewer law enforcement professionals serving in our communities. Criminals are utilizing these illicit activities to further fund criminal enterprises that disrupt our way of life...Law enforcement needs the authority to enlist assistance from providers such as infrastructure providers including ISP's and financial service providers such as payment processors, to protect US commerce." - Dennis Hallion, Executive Director, National Troopers Coalition, August 11, 2011
"Criminals are now exploiting the unrestricted distribution opportunities that the Internet has to offer, expanding their illicit activities and profits. They create rogue Internet websites to sell of a myriad of products including counterfeit pharmaceuticals; toothpaste; and baby formula, all of which pose a serious risk to the safety and health of the American consumer. Moreover, organized crime rings who deal in drug and human trafficking are now getting involved in online counterfeiting and piracy...Piracy and counterfeiting pose a serious risk to the health, safety and well-being of our communities throughout the nation. Therefore, the National Sheriffs' Association (NSA) supports the PROTECT IP Act of 2011 (S968)." - Aaron D. Kennard, Executive Director, National Sheriff's Association, November 28, 2011
"On behalf of the Major County Sheriffs' Association (MCSA) I am writing in support of S.968, the [PROTECT IP Act]. The theft of intellectual property (IP) has become a major issue that law enforcement must combat using various resources. Law enforcement's ability to crack down on counterfeiters and their deception of the general public must be strengthened." - Douglas C. Gillespie, Major County Sherriff's Association, August 15, 2011
"On behalf of the Major Cities Chiefs Association, representing the 63 largest Police Departments in the Nation, I am writing to encourage you to take action against the threat of foreign websites which sell counterfeit U.S. goods and routinely violate the intellectual property rights of U.S. companies and individuals...Law enforcement cannot address the problem alone, which is why Internet infrastructure providers like ISPs and financial service providers should be included in any legislative solution. These organizations are uniquely positioned to ensure counterfeiters and intellectual property thieves cannot easily access the United States market." - Charles H. Ramsey, President, Major Cities Chiefs' Association, August 8 2011
"We are committed to providing our members the tools they need to do their jobs, improving their working conditions and safety, and fighting for adequate staffing, training, and equipment for those who dedicate their lives to keep others safe. For these reasons, we write in support S. 968, the [PROTECT IP Act], legislation that would strengthen U.S. law enforcement's capacity to take action against foreign 'rogue' websites that traffic in counterfeit and pirated products. These criminal sites threaten American jobs and local economies across the country." - Harold A. Schaitberger, General President, International Association of Firefighters, September 13, 2011
Background on The PROTECT IP Act (S. 968)
The bipartisan PROTECT IP Act was approved by the Senate Judiciary Committee by a unanimous voice vote on May 26, 2011. The legislation will protect American businesses and American workers by making it more difficult for operators of rogue websites, often based overseas, to steal American intellectual property. More than 40 Senators are cosponsors of the legislation, which is supported by hundreds of businesses, consumer advocacy groups, labor organizations and intellectual property coalitions. Related, bipartisan legislation has been introduced in the House of Representatives.
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