Is the OPEN Act a More Viable Alternative to SOPA?

Now that SOPA and its companion bill PIPA have been tabled thanks in no small part to the statement made by the online community in organizing the SOPA blackout, the focus shifts to the Online Protection and Enforcement of the Digital Trade Act (the “OPEN Act”), H.R. 3782, which was introduced by Rep. Darrell Issa (R-California) on the same day as the SOPA blackout as an alternative to SOPA and PIPA. As PC World reported, supporters of the OPEN Act include Google, Facebook, LinkedIn, and Twitter, but as you might expect, the Motion Picture Association of America opposes the bill as being too easy on internet piracy.

What are the key provisions of the OPEN Act? Well, unlike in SOPA, the OPEN Act gives the International Trade Commission (“ITC”) enforcement action and focuses on foreign-based websites that willfully promote the violation of copyright law. If the ITC finds that a website is “primarily and willfully” promoting the violation of copyright law, the OPEN Act allows the ITC to issue a cease and desist order against the website and to render the infringing site unable to make a profit off of the infringing activities. Congressman Issa has set up an interactive website, where you can read the full text of the bill and comment on the provisions. Also, he has provided a summary and explanation of the bill, which you can read here.

Obviously, the OPEN Act provides a far less drachonian approach to dealing with infringing foreign websites than what was contemplated by SOPA, which would have allowed full websites to be completely “erased” from the Internet. Instead, the OPEN Act’s approach goes to the heart of the problem: cutting off the ability of infringers to make a profit off of their infringement. So, in that respect, the OPEN Act is definitely improvement over SOPA. Also, there is an argument that the ITC is a more appropriate body to hear these kinds of disputes, since the agency already has been tasked with the job of addressing unfair import disputes, where intellectual property violations are involved. Furthermore, this bill focuses on the problem of infringement by foreign websites, so it targets the real source of concern over infringement as opposed to usurping existing methods of dealing with domestic infringers.

On the other hand, you certainly can argue that the process of pursuing an ITC hearing may be too cumbersome for some U.S. businesses to pursue, where they are being infringed by a foreign website. And, of course, it fails to address the issue of how to deal with infringement by foreign websites where those websites are not openly profiting off the infringement. Furthermore, it’s not clear yet exactly how this new solution for dealing with infringement would interplay with the existing methods of dealing with infringers.

All in all, however, I think the OPEN Act is a much more palatable proposal for dealing with infringers, and that this bill is a far better working document than what we had on the table with SOPA and PIPA.  At the same time, I  think that the whole concept of adopting new legislation to deal with online infringers is still a work in progress  warranting further consideration before any new legislation is adopted.  I personally am still not overly happy with the Digital Millenium Copyright Act (“DMCA”) and would have liked to have seen more consideration given to that bill before it was adopted.  I would argue that we need to stop and give further consideration to the whole body of copyright infringement law before we start adopting new legislation to deal with the same problems that the prior legislation attempted to deal with.

My colleague Professor Eric Goldman of Santa Clara School of Law reviewed this proposed legislation back in December, and had some very interesting comments to add to the discussion, which were republished by Ars Technica.   His overall assessment was that the OPEN Act was an improvement over SOPA and PIPA and should be the working document for a new bill, but that it still required significant work before adoption.

I think it is safe to say that there is a general feeling out there that current copyright law does not provide enough protection against offshore infringers.  As a practitioner in this space, I regularly have to tell clients what their options are to deal with offshore infringement and inevitably they are less than satisfied with the options available to them to deal with this type of problem.  I think the question for us all is how best to fill in the gaps in existing law that make stopping offshore infringement out of reach for so many domestic copyright owners.  I would agree with Professor Goldman that we aren’t quite there in coming up with a workable solution to these issues.

Kristie Prinz

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