December 14, 2011 | By Julie Samuels

The OPEN Act: The Good, the Bad, and a Practice in Participatory Government

We wrote last week about Sen. Ron Wyden and Rep. Darrell Issa’s OPEN Act, which addresses many glaring problems with the Stop Online Piracy Act (SOPA) and its Senate counterpart, the PROTECT IP Act (PIPA). Since then, we’ve further reviewed the draft legislation and its process for submitted comments. Our original take remains the same: this proposal represents a more targeted approach to the so-called foriegn site piracy problem, but there's room for improvement. Happily, the sponsors have created a space for just that.

At www.keepthewebopen.com, users can register for an account and publicly comment on the bill's language, before the bill is introduced. Unlike SOPA and PIPA, whose sponsors failed to get input from the tech community or apparently from anyone outside of the legacy content industries, the OPEN Act's sponsors invite — in fact, encourage — Americans from all sides of the political debate to weigh in.

We at EFF were pretty excited to hear about this new process (we're all over any kind of open government initiative), so we are submitting our own comments, highlighting both the good and the bad in the proposed OPEN Act. Let's start with the good (and some of our recommendations to make it better):

The bill defines infringing activity as activity that current law already considers illegal, criminal in fact. While this targeted part of the definition is good news, its second part is not: unfortunately, like SOPA and PIPA, the OPEN Act defines DMCA circumvention as "infringing activity." This is troubling. Plaintiffs often misuse § 1201, the circumvention statute, in effort to prohibit competition and consumer choice without having to show any underlying copyright infringement. Consider for example Microsoft’s efforts to prohibit access to Xbox users for third-party memory cards. The OPEN Act would create new ways to prevent those types of innovations from being sold in the United States, or worse, would prohibit technologies that serve as important tools used in international human rights work. (Sec. 2(a)(4)).

Speaking of prohibiting sales in the U.S., the OPEN Act takes the novel approach of moving the dispute between rights-holders and allegedly infringing sites to the International Trade Commission (ITC) and out of federal courts. The ITC offers a procedure cheaper and more efficient than courts, which is good. The OPEN Act requires the ITC to investigate any complaint made by any third person, but fails to create an early process at the outset of the investigation for immediate dismissal of bogus complaints (the kind of complaints we already see way too often). While the OPEN Act’s proposed rulemaking could lead to early case disposal procedures, we would like to see those protections in the statutory language. (Sec. 2(c)(1)(B)).

The OPEN Act really only targets foreign sites, and explicitly excludes any sites located in the United States or who have otherwise consented to the jurisdiction of the U.S. courts. We were pleased to see the bill so clearly remove domestic sites from its ambit (especially since those U.S. sites are already governed by existing copyright laws, such as the DMCA). (Sec. 2(c)(5)).

Speaking of the DMCA, unlike SOPA and PIPA, the OPEN Act does not make an end-run around the DMCA. Say what you will about the DMCA’s notice and counternotice procedures, but they at least signify an important balance between rights-holders and speakers while creating safe harbors for service providers that actually work. SOPA and PIPA threaten those safe harbors; the OPEN Act doesn’t.

Third-party intervention in the ITC process as a right is good, and the OPEN Act explicitly provides for it. Specifically, a financial transaction provider or Internet advertising service identified in a complaint may intervene in the resulting ITC investigation or an action challenging the sufficiency of an ITC order. Many targeted sites might lack the resources to fight during the ITC investigation, so allowing others to weigh in as a right is important. We wish that the OPEN Act also provided an explicit procedure for other third parties (like EFF!) to file briefs on behalf of either party. (Sec. 2(d)(3)(C)).

The OPEN Act requires that ITC orders be subject to review by the President, who will have 60 days to decide if the order is enforceable (if the President upholds the order, the site can appeal to a federal court). Review is good; what is not good is that the bill requires that the order be implemented pending that review. We think it wiser that the OPEN Act create a window of time before the order, which can cut off funding and advertising revenue to a site, takes effect (especially because the risk to cutting off payments and ad revenue to a site that might host perfectly legal speech is so great). (Sec. 2(e)(5)).

The OPEN Act allows sites to cure, a positive provision. If a site is no longer in violation of the act, the ITC is required to “modify, suspend, or vacate” its cease-and-desist order, meaning that the site can get financial and advertising support back. (Sec. 2(f)(3)(B)(i)).

And the bad:

The provision for entering temporary or preliminary relief arguably does not require (or contemplate) participation from the targeted site (notably, neither does the Federal Rules). It does require notice to the site before implementation, but we’d much prefer a process that includes both sides, especially because temporary or preliminary relief as contemplated by the OPEN Act can potentially silence fully legal speech. (Sec. 2(f)(2)).

The OPEN Act lacks a public interest provision that would require the ITC to consider the effect on the public interest that its order might have. The rules governing patent actions at the ITC require it to take into account the public interest; unfortunately, the ITC doesn’t always take that requirement seriously. To preserve the balance between intellectual property claims and the public interest, the OPEN Act should expressly mandate that the ITC make findings on the effect that a cease-and-desist order would have on the public interest.

The vigilante provision still lives, which is our biggest complaint about the OPEN Act. The legislation’s current draft includes language that can be read to provide immunity for financial transaction providers and Internet advertising services who cut off payment and services to a site based on a "reasonable belief based on credible evidence" that the site is dedicated to infringing activity and the services do not otherwise breach their contractual relationships with the sites. Unfortunately, the draft legislation fails to define “a reasonable belief based on credible evidence,” creating a scenario where providers could proactively cut off services to avoid potential liability, even if their “reasonable belief” is only based on notice from the big content industries. (Sec.2(j)).

You will be able to see all of EFF’s comments at www.keepthewebopen.com, where you can also make your voice heard. Hurry, the bill’s sponsors intend to introduce it by the end of the week. In the meantime, also continue to keep the pressure on your Representative, and let him or her know just how bad SOPA and PIPA are!


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