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Re:Marks on Copyright and Trademark

The OPEN Act: Another Legislative Option to SOPA and PIPA

Undoubtedly today’s widespread Internet protest, which has darkened web sites ranging from Wikipedia to reddit to Flickr, has raised public awareness of the looming legislative and public relations battles associated with the Stop Internet Piracy Act (“SOPA”) and the Protect IP Act (“PIPA”), which are currently under consideration in the House and Senate, respectively. While the debate over the merits of these largely similar bills is still heating up (a vote on PIPA is expected as early as January 24), Congressman Darrell Issa (R) of California has announced plans to introduce competing legislation in the form of the Online Protection and Enforcement of Digital Trade Act (“OPEN Act”).

SOPA, PIPA and the OPEN Act each aim to stop the flow of infringing digital content from foreign websites into the United States. SOPA and PIPA would empower the Justice Department to police sites hosting infringing digital content or linking thereto. Infringement would be curtailed through a variety of means, including requiring search engines to remove references to infringing foreign sites from search results, requiring that payment providers close accounts associated with such sites, and ordering that Internet Service Providers alter Domain Name Server records to prevent access to such sites.

In contrast, the OPEN Act would place responsibility for investigating digital content infringement originating outside the United States squarely on the shoulders of the International Trade Commission. Infringing digital content originating at foreign web sites would be treated similarly to tangible imports that infringe intellectual property rights. Key provisions of the OPEN Act include the following:

  • In order to warrant ITC action, a foreign site must be primarily and willfully used to infringe intellectual property rights;
  • Investigations could be launched independently by the ITC or in response to a petition filed by a United States rights holder; and
  • Upon a finding that a foreign website is primarily and willfully infringing a valid intellectual property right, the ITC could order payment processors and web-based advertising services based in the United States to cease all contact with the infringing site.

The bill would also allow for expedited action by the ITC under certain circumstances.

Internet heavyweights including Facebook, LinkedIn, Twitter and Yahoo! have already spoken out in favor of the OPEN Act, and a growing number of members of both houses of Congress have voiced support as well. Thus, while all eyes are on SOPA and PIPA during today’s well-publicized online protest, it is important that rights holders and Internet-based businesses keep a close eye on the OPEN Act as well.

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