As worded, the definition of web sites that are “Dedicated to Theft of U.S. Property,” which forms the basis of liability pursuant to this bill, is vague and requires some clarification. Specifically, § 103(a)(1)(B)(i) provides three different ways in which a U.S. directed site could have exposure to action under this bill: 1) if it is “primarily designed or operated for the purpose of . . . offering goods or services in a manner that engages in, enables, or facilitates” a violation of 17 U.S.C. § § 501 or 1201, or counterfeiting under 15 U.S.C. § 1116(d) or 18 U.S.C. § 2320; 2) if it “has only limited purpose or use other than . . . offering goods or services in a manner that engages in, enables, or facilitates” the same violations; or 3) if it “is marketed by its operator or another acting in concert with that operator for use in offering goods or services in a manner that engages in, enables, or facilitates” the same violations.

Option three in this series does not require a showing that the marketing efforts have a primary purpose of, or have a limited purpose other than, infringing these intellectual property rights. We believe this inconsistency needs to be addressed to reduce possibility of abuse that could result in the effective shut down (by disabling a revenue stream) of an otherwise legitimate web site that offered a single product later determined to be a counterfeit.

In order to effectuate this purpose, option three in the series identified above should be modified to reflect a narrow interpretation of the definition of “Dedicated to Theft of U.S. Property.”