On December 17, 2011, OPEN was introduced to the Senate by Senator Wyden as Senate Bill 2029. It was co-sponsored by Kansas Senator Jerry Moran and Washington Senator Maria Cantwell. It was introduced by 25 co-sponsors to the House of Representatives by Representative Issa on January 18, 2012, as House Bill H.R. 3782. The bills were referred to the Senate’s Finance Committee and the House of Representative’s Judiciary Committee.
White House technology officers Aneesh Chopra, Howard Schmidt and Victoria Espinel responded to two White House petitions submitted on January 14, 2012. They said that new cyber security risks should be avoided and that the underlying architecture of the Internet should not be disrupted by legislation. Their view was that efforts to fight online piracy should not encourage the censorship of lawful online activity and should not stifle innovation by online businesses.
How Does OPEN Compare to SOPA and PIPA?
The proponents of OPEN wrote the bill as a replacement for PIPA and SOPA. In May, 2011, PIPA gained the approval of the United States Senate Judiciary Committee. Texas Republican House Judiciary Chairman Lamar Smith introduced SOPA in November of 2011. An eleven-member bipartisan aggregation of lawmakers originally described OPEN as a framework of potential legislative action prior to the following week’s House Judiciary markup of SOPA.
The OPEN Act is an attempt to halt money transfers to foreign websites that conspire to counterfeit or pirate copyrighted materials. On the other hand, SOPA and PIPA force the various Internet providers and search engines to block access to these sites by redirecting traffic. The PIPA bill centered on blocking the registration of offending sites’ domain names. SOPA, on the other hand, required Internet providers to block access by United States subscribers by blocking the offending IP addresses and examining the contents of electronic packet transfers, known as “deep packet inspection.”
The Open bill, conversely, puts the enforcement and regulation squarely on the United States International Trade Commission (ITC) instead of the Justice Department. The ITC normally handles disputes related to patent violations. It would be empowered to gather fees from complaining parties and to investigate the claims with additional workers.
The KeepTheWebOpen website describes OPEN as a method to preserve artistic rights. It differs from SOPA and PIPA because it doesn’t propose policing of the Internet and will not blunt calls for interference-free Internet access in closed societies. Like PIPA and SOPA, the bill seeks to protect legal Internet concerns, cutting-edge Internet advances, legitimate websites or social media sites. Proponents of the bill are encouraged because intellectual property authorities will judge the intellectual property theft cases. OPEN also targets the foreign criminals behind the illegal pirate sites. OPEN, like PIPA, applies due process to the prosecution while SOPA does not.
Reaction to OPEN
Google and Facebook are in favor of the OPEN legislation. SOPA and PIPA have found favor among the music and film industries. The Consumer Electronics Association praised the bill’s sponsors for devising a fast, efficient method to close pirating websites without hurting law-abiding companies or lining the pockets of corporate attorneys. Fred von Lohmann, Google’s copyright lawyer, said as far as Google is concerned, the best way to shut down the pirate sites is to follow the money trail. This tactic worked for illegal offshore gambling sites, and it is expected to be just as successful for these new threats to copyright.
The Motion Picture Association of America (MPAA) is strongly opposed to the OPEN bill. Michael O’Leary, the MPAA’s Vice President of Global Policy and External Affairs, said the bill permits online pirate sites to plead for protection as a rogue site against the legal U.S. holders of copyrights. The MPAA feels that companies will evade prosecution the same way that The Pirate Bay avoided prosecution in Sweden, where the site is based. Pirate Bay still lists data concerning illegal downloads in its search index. OPEN would go after overseas advertising networks that post ads on pirate sites, but it is likely that Pirate Bay would be able to continue without ads.
The worst problems with SOPA and PIPA would be addressed by OPEN, says the Electronic Frontier Foundation (EFF), which is constantly monitoring new versions of the bill’s draft.
Forbes recently criticized the bill for being untenable politically and for basically setting anti-piracy efforts back several years. The bill could lead to turf wars regarding congressional jurisdiction and the politics of global trade.
The Public View with Madison
Madison has been called a Wikipedia for the legislative procedure. Madison permits users to nominate ongoing changes to the draft version of the OPEN bill. Critics says public participation has Wiki-fied the process.
Given the opposition to both SOPA and PIPA, OPEN has received more acceptance, but it is not being universally lauded. Like most legislation, there are powerful players for and against the bill. What are your thoughts?
