119-hr791

[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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