The OPEN Act Introduced; Can It Kill SOPA and PIPA?

Wednesday was a big day for the Internet and for U.S. Congress, and a terrible day for supporters of two anti-piracy bills being considered — the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA).

By the end of the day, which had seen a massive online protest and a dramatic shift in support in Washington, two members of Congress had introduced an alternative bill that they hoped would be able to provide a unified approach toward fighting online piracy.

The Online Protection & Enforcement of Digital Trade Act (OPEN) was introduced to the House on Wednesday night by Rep. Darrell Issa (R-CA), one of the most outspoken critics of SOPA and PIPA.

“OPEN is a targeted, effective solution to the problem of foreign, rogue websites stealing from American artists and innovators,” said Issa in a press release. “Today’s Internet blackout has underscored the flawed approach taken by SOPA and PIPA to the real problem of intellectual property infringement. OPEN is a smarter way to protect taxpayers’ rights while protecting the Internet.”

The main difference between OPEN and the other two bills that have caused such a furor of criticism is that OPEN fundamentally differs on which government agency should be responsible for fighting online piracy and how it should go about it.

SOPA and PIPA are written to give the U.S. Attorney General the power to seek court orders to take-down foreign websites when those websites are accused of piracy by copyright holders, like Hollywood and the recording industry.

Once a foreign website is accused of piracy under SOPA and PIPA, all U.S. websites and companies are forced to sever ties with it — removing links and stopping payment processing and advertising with them. That could mean the removal of links from Google, Facebook and Twitter, including those posted by users.

The OPEN Act differs in that it would make the International Trade Commission (ITC) the agency responsible for fighting online piracy. The ITC already handles all cases involving foreign imports that are accused of copyright infringement, so it would seem a more natural fit for dealing with foreign websites, according to Issa and Senator Ron Wyden (D-OR), the bill’s other main co-sponsor.

Under OPEN, once the ITC receives a complaint that a foreign website contained pirated material, it would be obligated to notify the website of the complaint — a key provision missing from SOPA, where no notification is required.

Further, if the ITC decides a complaint was legitimate, the agency could only force U.S. advertisers and payment companies to cut-off business with the foreign website, NOT search engines or Internet Service Providers, as had previously been required by both SOPA and PIPA. The OPEN Act also narrows the definition of what can websites can be targeted, saying that only those foreign sites that have “a limited purpose” aside from piracy or are clear piracy centers can be considered.

Although Wednesday marked the official introduction of the OPEN Act into the House, it’s actually been online for some time now.

Issa and Wyden together came up with the idea for OPEN and released the first draft online at “Keep the Web Open” for public comment and even revision suggestions on December 8, 2011. Wyden introduced it into the Senate on December 17, but with only two co-sponsors, Sen. Maria Cantwell (D-WA) and Sen. Jerry Moran (R-KS), it didn’t get very far, tabled in the Senate Finance Committee, despite the support from Google, Twitter, Yahoo and other Web companies.

Issa and Wyden hope that the ruckus over SOPA and PIPA and the mass protests on Wednesday can change that.

At a panel discussion on Capitol Hill on Tuesday, Issa bragged that OPEN would have “more co-sponsors than SOPA” had originally when it was introduced by Rep. Lamar Smith (R-TX) in October. Sure enough Issa introduced the bill on Wednesday, 24 co-sponsors were listed, most of them Democrats, compared to SOPA’s original set of 12 co-sponsors.

While that’s a good sign for the bill’s chances, SOPA’s architect, Rep. Lamar Smith, didn’t take kindly to the introduction of the new alternative bill in the House.

Shortly after OPEN was introduced, Smith late Wednesday put out a lengthy statement titled “OPEN Act Increases Bureaucracy, Won’t Stop IP Theft“:

“The OPEN Act creates loopholes that make the Internet even more open to foreign thieves that steal America’s technology and IP without protecting U.S. businesses and consumers. It amounts to a safe harbor for foreign criminals who steal American technology, products and intellectual property.”

Specifically, Smith alleged that the OPEN Act’s definitions were too narrow, and would allow sites like The Pirate Bay (called out by name) to slip through unpunished. Smith also objected to the fact the the ITC would be handling piracy cases under OPEN, saying that intellectual property disputes have been handled by the courts since the nation’s Founding.

Smith’s not the only one who isn’t a fan of the OPEN Act. After Wyden first brought it up in December, the Motion Picture Association of America (MPAA), which has been a staunch supporter of SOPA and PIPA (as recently articulated by MPAA CEO and former Senator Chris Dodd), blasted the alternative, saying it went easy on piracy.

Smith also alluded to opposition to the OPEN Act from the “Copyright Alliance,” a four-year old advocacy non-profit that says it is “dedicated to the value of copyright as an agent for creativity, jobs and growth.”

Still, Issa and Wyden aren’t backing down.

“#OPEN is a targeted, effective solution to foreign rogue websites stealing from American artists,” Issa tweeted on Thursday afternoon.

Wyden first alluded to the creation of the alternative bill earlier in December to TPM, telling us in a phone interview: “Much more discussion between folks on the content side and technology companies can help us to strike a better balance.”

Wyden is arguable the most committed and longest opponent of SOPA and PIPA — so much so that he imposed a hold on PIPA, the Senate version, shortly after it was introduced in May 2011.

Thanks to Wyden’s hold, PIPA was stuck in legislative limbo for the past six months. But then in December 2011, Senate Majority Leader Harry Reid, Wyden’s fellow Democrat, filed a cloture motion, breaking Wyden’s hold and forcing the full Senate to do a roll call vote on PIPA, which has been scheduled for Tuesday, January 24.

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