With the dramatic protest against SOPA and PIPA being ruled a success, Congress has already began to seek a viable alternative. OPEN (H.R. 3782, the Online Protection and Enforcement of Digital Trade Act) was introduced last Wednesday by Rep. Darrell Issa (R-Calif.) in the House of Representatives. This bill, which, according to Issa, “delivers stronger intellectual property rights for American artists and innovators while protecting the openness of the Internet,” is designed to focus primarily on foreign websites. Senator Ron Wyden (D-Ore.) introduced OPEN to the Senate.
OPEN — which has received support from Google, Facebook, Twitter, and others — empowers the International Trade Commission to investigate websites that “knowingly and willingly” sponsored, hosted, or supported copyright infringement. According to Issa’s website, KeepTheWebOpen, which seeks public review of the bill, “If the ITC investigation finds that a foreign registered website is ‘primarily’ and ‘willfully’ infringing on the IP rights of a U.S. rights holder, the commission would issue a cease and desist order that would compel payment processors (like Visa and Paypal) and online advertising providers to cease doing business with the foreign site in question. This would cut off financial incentives for this illegal activity and deter these unfair imports from reaching the U.S. market.” The Motion Picture Association of America and the Recording Industry Association of America have both came out in opposition of the bill, calling it too weak on Internet piracy.
A key component of the bill is the empowerment of an existing agency to investigate all accusations of piracy and the due access to appeal. SOPA and PIPA allowed accusers to close — theoretically — entire websites on the suspicion that a single post from an outside user may contain material that violates existing copyrights. SOPA and PIPA also allowed for the implementation of sanctions before the accuser is allowed to respond, violating the American legal tenet of “innocent until proven guilty.”
The recent seizure and closure of MegaUpload, a hosting site that allowed for the upload and download of pirated files and programs, highlighted the existence of existing laws that combat piracy. One of these laws is the Anti-Counterfeiting Trade Agreement, or ACTA. ACTA was signed by the United States, Australia, Canada, Morocco, Japan, New Zealand, Singapore, and South Korea on October 1, 2011 in Tokyo. This treaty created a voluntary legal framework outside of the United Nations, the World Trade Organization, and the World Intellectual Property Organization with the express purpose of establishing international standards in the enforcement and prosecution of copyright infringement. ACTA’s scope includes counterfeit goods, infringed media, and generic medications.
Criticism of ACTA is rampant. Among the strongest complaints is that while discussions during development excluded civil rights groups and interested non-governmental organizations, it did include industry leaders such as Google, Time Warner, Verizon, the MPAA, the RIAA, and Sony, among others. The treaty calls for the establishment of an advisory committee that is made up of leadership from these firms who would negotiate and recommend amendments to the treaty. Public or judicial review would not be required. In 2010, a conference of over 90 public interest groups, academics, and lawyers from across the world was held at Washington College of Law which called for the halt of the ACTA treaty. It was argued that ACTA violated the public interest, restrict civil and digital rights, and endanger the freedom of expression and communication privacy. In addition, ACTA’s removal of liability protection for ISPs against their subscribers’ actions, lack of disclosure, requirements that ISPs can no longer host free software that can access copyrighted media-such as in-browser movie viewers-and requirements that open source software, shareware, or freeware cannot legally play DRM-protected media raised serious red flags about the treaty. Recently, Poland was hit with a PIPA style protest in response to the country’s consideration to sign the treaty.