Today, Senator Ron Wyden (D-OR) and Representative Darrell Issa (R-CA) presented to the public draft legislation that presents an alternative to earlier bills aimed at combatting “rogue websites.”
While the goal of the new legislation — to combat foreign websites that traffic in counterfeit or unauthorized US intellectual property — is similar to earlier proposals, it offers an entirely different mechanism for dealing with these infringing sites. The new bill is called the Online Protection & ENforcement of Digital Trade Act, or OPEN. These names are really something else, aren’t they?
Many, including FMC, have expressed concern that the earlier bills — the Stop Online Piracy Act (SOPA), in particular — go too far and could end up impacting legitimate expression. Additional red flags have been raised by human rights advocates and proponents of democracy abroad, who see the shutting off of access to sites that may “facilitate” infringement as a threat to speech, political and otherwise. The question has been not so much about whether the foreign websites that profit from US intellectual property should be dealt with, but rather how. (You can see our earlier statement on SOPA here; our PIPA analysis here.)
We’re still in the process of reviewing the OPEN Act, but one thing that’s interesting right out of the gate is that the bill’s proponents have invited the public to weigh in. That’s in contrast to the not-entirely-incorrect characterization of federal policymaking being a behind closed doors affair. We think it’s commendable that the bill’s authors are soliciting public feedback — after all, the policy involves the internet, and therefore has the potential to impact anyone who goes online.
At first blush, the OPEN Act does seem to address many of the concerns voiced by those skeptical of SOPA and PIPA. The bill targets only non-domestic sites “dedicated to infringing activity,” and which have “only limited purpose or use other than engaging in infringing activity and whose owner or operator primarily uses the site to willfully engage in infringing activity.” That’s certainly a much tighter set of definitions than what is found in SOPA.
The OPEN Act also completely removes the DNS provisions, which had many IT experts crying foul. DNS blocking is essentially a technological means to prevent access to a site’s domain name (but not its underlying content, which can still be reached by typing in the site’s numerical IP address). Concerns here range from cybersecurity to the message America is sending to the world regarding informational freedom. Instead, OPEN establishes a process through which the “bad guys” would be denied the ability to profit from their infringing activity. This is achieved by cutting off payment processing and ads served to such sites.
Also different is the agency tasked with overseeing the process. Both SOPA and PIPA would expand the US Attorney General’s ability to bring action against allegedly infringing sites. These bills — to differing extents — also allow rightsholders to seek certain remedies without court oversight based on the mere accusation of infringement. The OPEN Act, on the other hand, makes the International Trade Commission (ITC) the agency that looks into complaints from rightsholders. (The ITC has experience here with its work involving US patents.) Importantly, there seem to be stronger due process protections through which a targeted site can counter the accusation.
We’re not entirely convinced that the ITC is the agency to do this work, but that’s mostly because we’re not perfectly knowledgeable about how they conduct their current business. We are, however, glad to see a proposal on the table that could provide a possible way forward on what has been a very contentious issue. What we’d MOST like to see is a better understanding among both big content companies and policymakers of how today’s music marketplace actually functions. And we’ve always said the best way to find that out is to ask an actual artist.
There’s no going back to 1995, as much as some of us — including this author — might sometimes want to. (I was thinner then.) The way forward is to find ways to compensate creators while letting them participate directly in all the innovations that we already take for granted, as well as those yet to come.