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Online Protection and Enforcement of Digital Trade Act

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Online Protection and Enforcement of Digital Trade Act
Great Seal of the United States
Acronyms (colloquial)OPEN Act
Legislative history

The Online Protection and Enforcement of Digital Trade Act (OPEN Act) is a bill introduced in the United States Congress proposed as an alternative to the Stop Online Piracy Act and PROTECT IP Act, by Senator Ron Wyden of Oregon, a Democrat, and Representative Darrell Issa of California, a Republican.[1][2][3][4][5] The text of the bill is available for public comment at keepthewebopen.com .[6]

Wyden first introduced OPEN in the Senate (S. 2029) on December 17, 2011, with co-sponsors Jerry Moran of Kansas and Maria Cantwell of Washington. Issa and 25 co-sponsors introduced OPEN in the House (H.R. 3782) on January 18, 2012. The Senate bill has been referred to the Finance Committee, and the House bill has been referred to the Judiciary Committee.[7][8][9]

On January 14, 2012, in response to two White House petitions, White House technology officials Victoria Espinel, Aneesh Chopra, and Howard Schmidt stated: "Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small...We must avoid creating new cybersecurity risks or disrupting the underlying architecture of the Internet."[10][11][12][13]

Comparison with SOPA and PIPA/PROTECT IP Act

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The OPEN Act was proposed as an alternative to the PROTECT IP Act (PIPA), which was approved by the United States Senate Judiciary Committee in May 2011, and the closely related Stop Online Piracy Act (SOPA), which was introduced by House Judiciary Chairman Lamar Smith (R-TX) in November. After an initial description on December 2 as an outline of possible approaches written by a bipartisan group of eleven lawmakers,[14][15] a draft text was made public on December 8, 2011, in advance of a House Judiciary markup of the SOPA Act the following week. The OPEN Act seeks to stop transfers of money to foreign websites whose primary purpose is piracy or counterfeiting, whereas SOPA and PIPA also seek to require Internet providers and search engines to redirect users away from viewing the sites. The PROTECT IP Act proposed to do this by blocking domain name resolution, whereas SOPA imposes a broader requirement for network providers to "prevent access by its subscribers located within the United States" including blocking by IP address and possibly deep packet inspection.[3]

OPEN places enforcement responsibility on the United States International Trade Commission (ITC), which currently adjudicates patent-related disputes, rather than the United States Justice Department.[5] The ITC would be given power to collect fees from complainants and to hire additional personnel for investigations.[2]

Proponents of the OPEN Act describe it on the KeepTheWebOpen website as a way to protect the rights of artists like SOPA and PROTECT IP, but differing from its rivals by not introducing new internet police powers or undermining calls for open internet in closed societies, and by protecting legitimate internet businesses, social media, legitimate websites and internet innovation. They say that their proposal, but not its rivals, ensures that intellectual property cases will be resolved by intellectual property experts, and will target the actual criminals running foreign rogue websites. They criticize SOPA, but not PROTECT IP, for failing to apply due process to judging websites.[16]

Reception

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The OPEN draft is backed by Web companies such as Google and Facebook, whereas SOPA and PIPA are backed by the movie and music industries.[2][17]

The Consumer Electronics Association commended the sponsors of the bill, calling it "a quick, effective way to shut down pirate sites without damaging legitimate companies or enriching trial lawyers".[18] The bill was also praised by the Computer and Communications Industry Association.[19] Google copyright counsel Fred von Lohmann said for his company, "We think following the money, the money that supports foreign rogue sites, is a sensible place to start. It was quite successful in offshore gambling...We've been very clear with members of the committee that we support that".[3]

The OPEN draft was strongly opposed by the Motion Picture Association of America (MPAA). The MPAA's vice president of global policy and external affairs, Michael O'Leary, wrote in the MPAA's blog that the bill "allows companies profiting from online piracy to advocate for foreign rogue websites against rightful American copyright holders. It even allows notification to some of these companies if they want to help advocate for rogue websites".[20][21] The MPAA rejects any law that fails to block Americans' access to The Pirate Bay, a BitTorrent tracker which survived prosecution in its home country of Sweden and steadfastly refuses to remove information about infringing downloads from its search index. Darrell Issa maintains that the OPEN act could be effective against the site by targeting even overseas ad networks placing ads on the site, though it is possible that the site could survive without advertisements.[22][23]

The Electronic Frontier Foundation (EFF) wrote that the legislation "addresses many of the most glaring flaws in both SOPA and PIPA" but stated that it is continuing to review and analyze the draft.[1] Public Knowledge deemed the bill a "marked improvement" that would avoid the "vigilante justice" of its rivals.[19] Center for Democracy and Technology senior policy counsel Eric Sohn said that the bill's definitions "appear to carefully target true bad actors—the ones who are willfully fostering widespread infringement--while excluding general purpose platforms and social networking services", whose financial focus would "starve those bad actors of their financial lifeblood, rather than pursuing the futile and costly approach of messing with the Internet's addressing system".[3]

Copyright Alliance executive director Sandra Aistars called the OPEN Act "impractical for individual artists and creators", who would be required to argue in Washington before the trade commission rather than in their home jurisdictions, during a period of up to 18 months.[24] The process would be much faster, however, for sites that fail to reply and participate in the ITC process, according to Issa, who note that the ITC has a "rocket docket" in which cases are heard more quickly than any federal court.[25] Writing in the Huffington Post, Aistars argued that the bill placed more obstacles for individual artists than for corporate litigants seeking patent remedies before the ITC, saying that fees proposed for complainants in the action were "unprecedented" and incompatible with "justice for all", while third parties profiting from the infringement could argue for the decision to be overturned by the Administration without paying any fee. She further stated that the hearing officers assigned to hear cases by the bill were not required to have intellectual property expertise, and that the evidentiary requirement for a site owner to "willfully" commit infringement would be a mental state impossible to prove for rogue operators refusing to consent to U.S. jurisdiction.[26]

Professor Eric Goldman of the Santa Clara University School of Law reviewed the bill in detail for Ars Technica, finding it "flawed, but more salvageable" than "SOPA's disgustingly blatant rent-seeking" and praising the bill's due process features and a focus on foreign trade policy. However, Goldman also warned that the burden on U.S.-based payment service providers and ad networks could drive business to foreign competitors and permit domestic and foreign legal action simultaneous with the ITC administrative proceeding, or other abuses.[27]

Forbes ran a column denouncing the bill as "politically untenable" and "not a viable alternative because it is a transparent attempt to return a several year effort back to square one, while also entangling it with thorny and debilitating congressional jurisdictional turf battles and even thornier and glacial trade policy politics."[28]

Nonetheless, in support of OPEN, The New York Times, in an editorial, notes "[OPEN] gives copyright holders powerful new tools to protect themselves. And it goes a long way toward addressing the concerns of Internet companies, protecting legitimate expression on the Web from overzealous content owners".[29]

Public comment using Madison

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The call for public comment on the draft was described by CNET as "the Wiki-fication of part of the legislative process". Site visitors can read the text of the bill and suggest specific edits[3] on Madison, described as a "digital legislative platform that lets anyone suggest changes to the draft bill, a Wikipedia of sorts for legislative text".[30]

Supporters

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The following members of Congress support the Online Protection and Enforcement of Digital Trade Act.[31]

Senate

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House

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References

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  1. ^ a b Julie Samuels (December 8, 2011). "An Alternative to SOPA: An Open Process Befitting an Open Internet". EFF. Archived from the original on December 12, 2011. Retrieved December 10, 2011.
  2. ^ a b c Michael Shepard; Steve Walsh (December 8, 2011). "Anti-Piracy Role Added to U.S. Trade Agency in Draft Bill". Bloomberg Businessweek.[dead link]
  3. ^ a b c d e Declan McCullagh (December 8, 2011). "SOPA foes ready alternative plan--no Web blocking". CNet News. Retrieved June 19, 2024.
  4. ^ David Gomez (December 8, 2011). "Why the 1% shouldn't control the Internet". TG Daily. Archived from the original on December 9, 2011. Retrieved December 10, 2011.
  5. ^ a b Juliana Gruenwald (December 8, 2011). "Critics of Online-Piracy Bills Release Their Own Draft Legislation". NationalJournal. Archived from the original on October 21, 2012. Retrieved December 10, 2011.
  6. ^ "OPEN: Online Protection & ENforcement of Digital Trade Act". keepthewebopen.com. Archived from the original on September 17, 2012. Retrieved January 11, 2012.
  7. ^ Grant Gross, "Issa introduces SOPA alternative in the House Archived 2012-01-19 at the Wayback Machine" (January 19, 2012). IDG News Service.
  8. ^ "H.R. 3782 Archived 2012-03-04 at the Wayback Machine." GovTrack.
  9. ^ "S. 2029: Online Protection and Enforcement of Digital Trade Act Archived 2012-01-13 at the Wayback Machine." GovTrack.
  10. ^ Espinel, Victoria; Chopra, Aneesh; Schmidt, Howard (January 14, 2012). Combating Online Piracy While Protecting an Open and Innovative Internet (Report). White House. Archived from the original on November 24, 2011. Retrieved January 14, 2012.
  11. ^ Phillips, Mark (January 14, 2012). "Obama Administration Responds to We the People Petitions on SOPA and Online Piracy". whitehouse.gov. Archived from the original on January 21, 2017. Retrieved January 14, 2012 – via National Archives.
  12. ^ Wyatt, Edward (January 14, 2012). "White House Says It Opposes Parts of Two Antipiracy Bills". NY Times. Archived from the original on January 15, 2012. Retrieved January 15, 2012.
  13. ^ Thomas, Ken (January 14, 2012). "White House concerned over online piracy bills". Associated Press. Archived from the original on January 17, 2012. Retrieved January 14, 2012.
  14. ^ U.S. Senators Maria Cantwell (D.-WA), Jerry Moran (R.-KA), Mark Warner (D.-VA) and Ron Wyden (D.-OR) and U.S. Representatives Jason Chaffetz (R.-UT), John Campbell (R-CA), Lloyd Doggett (D-TX), Anna Eshoo (D-CA), Darrell Issa (R-CA), Zoe Lofgren (D-CA) and Jared Polis (D-CO). "Fighting the Unauthorized Trade of Digital Goods While Protecting Internet Security, Commerce and Speech" (PDF). Ron Wyden at the U.S. Senate. Archived (PDF) from the original on December 3, 2011. Retrieved December 11, 2011.{{cite web}}: CS1 maint: multiple names: authors list (link)
  15. ^ Grant Gross (December 2, 2011). "Lawmakers propose alternative to Stop Online Piracy Act". IDG News Service. Archived from the original on January 21, 2012. Retrieved December 11, 2011.
  16. ^ keepthewebopen.com. "SOPA vs PIPA vs OPEN". Archived from the original on April 26, 2012. Retrieved December 10, 2011.
  17. ^ "Twitter, Facebook, Google endorse alternate online piracy bill". Capitol Hill Publishing Corp. January 5, 2012. Archived from the original on January 15, 2012. Retrieved January 24, 2012.
  18. ^ "CEA Hails Issa, Wyden Intellectual Property Legislation". CEA. December 9, 2011. Archived from the original on April 15, 2014. Retrieved December 12, 2011.
  19. ^ a b Grant Gross (December 9, 2011). "Lawmakers release alternative proposal to Stop Online Piracy Act". IDG News service. Archived from the original on April 15, 2014. Retrieved December 12, 2011.
  20. ^ Joel Hruska (December 9, 2011). "Bipartisan group offers sane alternative to SOPA. Guess what Hollywood thinks". ExtremeTech. Archived from the original on December 11, 2011. Retrieved December 11, 2011.
  21. ^ Michael O'Leary (December 8, 2011). "Draft Legislation by Rep. Issa and Senator Wyden Goes Easy On Internet Piracy". MPAA. Archived from the original on December 11, 2011. Retrieved December 11, 2011.
  22. ^ Declan McCullagh (December 14, 2011). "SOPA backers: It's needed to take down The Pirate Bay". CNet. Archived from the original on April 19, 2023. Retrieved December 16, 2011.
  23. ^ Cybele Daley (August 19, 2011). "When It Comes to Fighting Rogue Sites, We All Need to Stand Together". MPAA. Archived from the original on January 16, 2012. Retrieved December 16, 2011.
  24. ^ Michael Cieply (December 12, 2011). "Opponent of Antipiracy Bill Backs Counterproposal". New York Times. Archived from the original on December 5, 2011. Retrieved December 12, 2011.
  25. ^ Declan McCullagh (December 14, 2011). "Rep. Issa: SOPA won't be approved unless fixed". CNet. Archived from the original on September 20, 2018. Retrieved September 7, 2017.
  26. ^ Sandra Aistars (December 15, 2011). "OPEN Act Falls Short for Artists and Creators". Huffington Post. Archived from the original on December 15, 2011. Retrieved December 15, 2011.
  27. ^ Eric Goldman (December 12, 2011). "The OPEN Act: significantly flawed, but more salvageable than SOPA/PROTECT-IP". Ars Technica. Archived from the original on May 9, 2012. Retrieved June 14, 2017.
  28. ^ Scott Cleland (December 14, 2011). "SOPA Fixes Isolate Opponents, especially Google". Forbes. Archived from the original on January 8, 2012. Retrieved September 7, 2017.
  29. ^ NYTimes Staff (January 28, 2012). "Editorial - Beyond SOPA". NY Times. Archived from the original on January 29, 2012. Retrieved January 28, 2012.
  30. ^ Scola, Nancy (January 3, 2012). "Left and right, Congress resists the Stop Online Piracy Act". Salon.com. Archived from the original on January 14, 2012. Retrieved January 11, 2012.
  31. ^ "Supporters". KeepTheWeb#OPEN. Archived from the original on January 7, 2012. Retrieved December 21, 2011.
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