An Alternative to SOPA: An Open Process Befitting an Open Internet
The truly frightening legislative proposals known as SOPA and PIPA continue to loom in Congress, promising to put a big lump of coal in the stocking of every Internet user. So we were glad to learn that a bipartisan group of congressional represenatives has come together to formulate a real alternative, called the OPEN Act, as well as a real process for including the Internet users and innovators it may affect.
You may remember that the stated goal of the Internet Blacklist Legislation was to target foreign websites who traffic in counterfeit and other IP-infringing goods. SOPA and PIPA went far beyond that goal with extreme remedies, like allowing the Attorney General to get a court order requiring service providers to "disappear" certain sites and the ability to shut down all services - such as inclusion in search, ad revenue, and payments services - to the point that a site would essentially no longer exist. Other provisions would allow private actors to force payment processors to cut off the economic lifeblood of any site where even a single page linked to infringement, even if the site's owners comply with the DMCA safe harbors. Adding insult to injury, the bills were written without any real input from the tech community, despite many in Congress' apparent complete lack of understanding about how the Internet actually works.
Enter the OPEN Act, draft legislation that addresses many of the most glaring flaws in both SOPA and PIPA. We're still reviewing the legislation, but here's some good news: the proponents of the bill (Sen. Ron Wyden, D-Ore. and Rep. Darrell Issa, R-Calif.) aren't afraid (and, in fact, are anxious) to hear from the many folks who care about the future of the Internet. So, they have opened up the entire law-writing process. Right now, you can go to KeepTheWebOpen.com and read the draft bill for yourself (which we encourage you to do) and make comments and suggestions to improve the draft language. We're glad to see that all of those who will feel the effects of the legislation - the tech community, individuals who depend on the Internet everyday, content creators, and, yes, even Hollywood - can have their voices heard. Once the OPEN Act's proponents collect comments, they will review and incorporate, and then introduce the bill in Congress.
Our inital take is that while the bill is far from perfect, some crucial steps have been taken. For instance:
- The bill does not require service providers or seach engines to take any action. In other words, the DNS System remains intact.
- The definition of targeted sites has been significantly narrowed to include only those "dedicated to infringing activity," and only those that are "accessed through a non-domestic domain name" and that 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."
- The International Trade Commission (ITC), an independent agency, would be tasked with investigating complaints from content owners. The ITC's process, one which is currently used in the patent context, is transparent, quick, and effective. Both parties would have the opportunity to participate and the record would be public. The process would include many important due process protections, such as effective notice to the site of the complaint and ensuing investigation as well as the ability to challenge any final permanent injunction in a federal court.
We'll continue to review and analyze this draft legislation, so watch this space. In the meantime, the introduction of a true, targeted alternative to SOPA and PIPA, and the open process with which it's being introduced, is good news for the tech community, for the Internet, and for the democratic process.