The Stop Online Piracy Act (SOPA, also known as E-PARASITE) has been roundly condemned by a wide range of tech companies, consumer groups, digital rights advocacy organizations, and members of Congress concerned about the havoc the bill could wreak on both the First Amendment and the US’s international standing. At the same time, however, there’s been recognition that SOPA’s goal — namely, preventing offshore groups from profiting from the sale of ill-gotten digital goods — is a valid one.
Rep Darrell Issa (R-CA) and Senator Ron Wyden (D-OR) have therefore teamed up to sponsor the Online Protection and ENforcement of Digital Trade Act, or OPEN. Like SOPA, OPEN is meant to combat digital piracy and widescale distribution by limiting the ability of said pirates to profit from their actions. Unlike SOPA, it treats such violations as trade disputes rather than criminal actions.
The new bill would require rightsholders to submit a complaint to the International Trade Commission and limits the type and nature of relief provided. While payment providers would still be required to cut off accounts and US ad services could no longer do business with the company, search engines would not be required to de-list content and no site blocks would be enacted.
Rightsholders would also lose the ability to unilaterally begin actions against companies without warning or prior notification and would be required to actually make a case and demonstrate that the site in question was infringing on their property. The MPAA hates it. Michael O’Leary, VP of Global Policy and External Affairs for the MPAA, blasted the legislation in a recent blog post. ” it [the legislation]… allows companies profiting from online piracy to advocate for foreign rogue websites against rightful American copyright holders. It even allows notification to some of these companies if they want to help advocate for rogue websites.”
That’s called filing an amicus, or “friend of the court” brief; it’s fairly common in cases and investigations. Who are these companies advocating for rogue websites? That’s Google. According to Lamar Smith, one of the chief sponsors and advocates of SOPA, Google’s position against the bill is purely self-serving. Writing in the National Review last week, Smith stated: ”Google recently paid a half billion dollars to settle a criminal case because of the search-engine giant’s active promotion of rogue foreign pharmacies that sold counterfeit and illegal drugs to U.S. patients.”
According to O’Leary, the bill’s other major problems are that the ITC is a lousy forum for handling such issues (it takes too long and is supposedly too friendly with technology companies) and it doesn’t require search engines to censor results for allegedly infringing sites.
It’s hard to see how the two sides of this issue can come to an agreement. The MPAA dislikes OPEN because it doesn’t give the organization the extra-judicial authority to steamroll any site it pleases, and unilaterally destroy its access to income, search traffic, and advertising without the need for an investigation. Those are precisely the reasons why SOPA in its current form is unpalatable — and there’s precious little that can be done to fix it.