Online Protection and Enforcement of Digital Trade Act Targets Nondomestic Infringing Internet Sites

The purpose of the Online Protection and Enforcement of Digital Trade Act (OPEN) is “[t]o amend the Tariff Act of 1930 to address unfair trade practices relating to infringement of copyrights and trademarks by certain Internet sites, and for other purposes.”  This bill was introduced in the House as H.R. 3782 on January 18, 2012 and in the Senate as S. 2029 on December 17, 2011.  Unlike the Stop Online Piracy Act I examined in Stop Online Piracy Act Would Make Major Changes to Existing Law, OPEN makes no changes to the Copyright Act.

Section 2 of OPEN amends Title III of the Tariff Act of 1930 (19 U.S.C. 1304 et seq.) by adding §337A Unfair Trade Practices Relating to Infringement of Copyright and Trademarks by Certain Internet Sites.  Section 337A(a) defines terms used in the section.  Section 337A(b) prohibits operating or maintaining an Internet site dedicated to infringing activity.  An Internet site dedicated to infringing activity is an Internet site with a nondomestic domain name that conducts business directed at U.S. residents and whose primary purpose is to willfully criminally infringe copyrights (17 U.S.C. §506), use counterfeit trademarks (15 U.S.C. 1116(d)) or to willfully violate U.S. laws regarding copyright protection and management systems (17 U.S.C. §§1201-1205).  Subsections 337A(c) – (l) set out the substance of the act.

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