Can OPEN help Congress make peace with the Internet?

We’ve written before about the proposed Stop Online Piracy Act or SOPA, which many in the technology industry and the legal community believe will break the Internet in a number of important ways. As it turns out, the legislation has its critics in Congress as well, and a bi-partisan group is now proposing its own alternative, which it calls OPEN. Its supporters argue it accomplishes the same goal as SOPA, which is to target “rogue” sites that traffic in piracy, but it would do so without the egregious infringements on free speech and other elements that made SOPA unappealing. But can OPEN win enough support to turn the tide?

The law’s actual name is the Online Protection & Enforcement of Digital Trade act, and it’s being promoted by Sen. Ron Wyden (D-Ore.) and Rep. Darrell Issa (R-Calif.), both of whom have been leading critics of SOPA and a similar House bill called the Protect IP Act. Although they’re different in some respects, both SOPA and the Protect IP Act involve granting powers to private companies to pursue websites for alleged infringement, and both would force payment companies and ISPs to police the legislation by removing those websites from the Internet and/or making it impossible for them to process payments. As Sen. Wyden said of PIPA:

At the expense of legitimate commerce, PIPA’s prescription takes an overreaching approach to policing the Internet when a more balanced and targeted approach would be more effective. The collateral damage of this approach is speech, innovation and the very integrity of the Internet.

OPEN has already won support from some SOPA critics

In contrast to SOPA and PIPA, which many critics said were far too wide-ranging in their definition of what constitutes an “infringing site” — a net some believed could easily have trapped popular media and content sites like YouTube (s goog) as well as obvious piracy-focused services — OPEN narrows that to concentrate on those “dedicated to infringing activity.” It also requires that the International Trade Commission be the independent arbiter of whether a site qualifies, whereas SOPA gave companies the ability to shut down websites with just a court order.

In a long analysis of OPEN, technology and intellectual-property law expert Eric Goldman said the new proposed law isn’t perfect, but is a “useful starting point” for a conversation about how to implement anti-piracy legislation — and how to do this without caving in to what he called “rent seekers” in the media and entertainment industries, and without breaking the Internet by forcing ISPs to change the domain-name system.

Goldman said he likes that OPEN relies on the ITC instead of allowing private companies to shut down sites with just a court order, and that the legislation doesn’t ask anyone to remove sites either from the domain-name system or from search engines. The law professor also said OPEN is much better than SOPA because it defines the concept of an infringing site more restrictively — including requiring the infringement be “wilful” or deliberate rather than accidental.

The Electronic Frontier Foundation also supports the Wyden-Issa legislation for many of the same reasons, saying it likes that the bill:

  • Doesn’t require service providers or search engines to remove websites, and therefore “the DNS System remains intact.”
  • The definition of targeted sites has been “significantly narrowed” and includes only those “dedicated to infringing activity.”
  • The International Trade Commission is tasked with investigating complaints, and it is typically “transparent, quick, and effective” and includes more protection for due process than SOPA or PIPA.

Flawed, but a worthwhile start to the conversation

The EFF said it was continuing to review the proposed legislation, but Goldman said he already had some concerns about it as an alternative to SOPA or PIPA — concerns he said made it hard for him to support it completely. Among other things, Goldman said he wasn’t sure the ITC would be an effective body to oversee the process, since it has shown that it can be “gamed” in the patent world, and he said he didn’t agree with requiring payment companies to be the last line of defence when it comes to shutting down alleged infringers. Still, he said it was a worthwhile start to a discussion about the issues.

For his part, Wyden said he and Rep. Issa hope that their proposed legislation can find a middle ground between what they see as the harmful approach taken by SOPA and the need to crack down on widespread international piracy and copyright infringement. In a prepared statement about the proposed law, Wyden said:

Yes, IP infringement is a problem, but the Internet has become such an important part of our economy and our way of life that it is essential for us to get the policies that shape its future right.

Wyden and Issa’s proposed law even has its own website called Keep The Web Open, where the authors are inviting the public to respond and suggest changes, something they note the original law did not do. Meanwhile, there’s also a new site aimed at critics of SOPA called I Work For The Internet, which is aimed at rallying technology leaders to protest the legislation. Along the same lines, a group of technology entrepreneurs — including Techdirt founder Mike Masnick — have created a new lobby group known as Engine Advocacy, which they hope will make it easier for the technology industry to reach out to Washington legislators about legislation like SOPA before it happens.

Whether any of these efforts will result in Congress turning away from its support of SOPA and PIPA remains to be seen, but it appears a number of forces both inside the government and outside are determined not to let that happen without a fight.

Post and thumbnail photos courtesy of Flickr users Stefan, Kevin Dooley and Bloomsberries