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Content Industry Not So Open to OPEN Act


(Copyright: Adchariyaphoto/ shutterstock)

While supporters of an alternative approach to curbing online piracy on foreign websites remain hopeful that it could be the starting point for future negotiations on the issue, so far the legislation remains a nonstarter for the content industry.

Fresh off his victory in helping to sideline legislation in both the House and Senate aimed at curbing piracy and counterfeiting on foreign websites, Sen. Ron Wyden, D-Ore., told National Journal this week he is still hopeful that an alternative bill he has offered could form the basis for negotiations on addressing the issue. Wyden and Rep. Darrell Issa, R-Calif., introduced legislation in both chambers, known as the Online Protection and Enforcement of Digital Trade, or OPEN Act, that would set up a process through the International Trade Commission to cut off the funding that foreign infringing websites get from online ads and payment processors.


“Obviously, this is a period when there are lot of conversations going on” about what’s next, Wyden said in a brief interview on Tuesday. “What I hope sinks in is that something along the lines of what we talked about [with the OPEN Act] is a good place to start the conversation.”

Wyden helped lead opposition in the Senate to controversial anti-online piracy legislation known as the Protect IP Act, which was strongly favored by movie studios, record companies, publishers, and others. They also backed a similar House bill known as the Stop Online Piracy Act. However, both Protect IP and SOPA were shelved last month following an unprecedented Internet protest organized by critics of the legislation including tech companies, Internet activists, and civil libertarians.

While supporters of Protect IP and SOPA say they are not giving up on the issue, it remains to be seen whether the two sides can ultimately come together over the OPEN Act or some other legislative solution after the bitter battle over SOPA and Protect IP. So far, there appears to be little interest from the content industry in using the OPEN Act as a starting point for future negotiations on ways to tackle the growth in piracy and counterfeiting of U.S. products on foreign websites.


“Honestly, I don’t think anyone in terms of the creative community is pushing anything at this point,” Copyright Alliance Executive Director Sandra Aistars said. “People are kind of taking stock.”

Aistars and other content industry representatives have outlined several problems with the OPEN Act. They worry that its definition of a site engaged in piracy is so narrow that it would be almost impossible for content owners to obtain relief. They also say the process the ITC uses is far too costly for all but the biggest content companies. The Recording Industry Association of America said even before the collapse of Protect IP and SOPA that the OPEN Act is worse than current law. In recent days, it reiterated its concerns with the legislation in a fact sheet sent to House members, which argued that the OPEN Act “is not supported by those it purports to protect. It needs to be scrapped. Stakeholders and Congress need to start over with a fresh look at solving this problem.” 

Key members of the House Judiciary Committee also have expressed little interest in the OPEN Act, which has been referred to both Judiciary and the Ways and Means committees. “The OPEN Act doesn’t do it. Not that it’s a bad idea. But we need much more than that,” Rep. Howard Berman, D-Calif., a leading SOPA supporter and senior House Judiciary Committee member, told National Journal on Thursday.

Still, Berman indicated that he and other Judiciary members have no intention of abandoning the issue. “Obviously we have to do some recalibrating,” he said. “But we have no intention of letting this issue drop.” 


In the Senate, Wyden said he has discussed his legislation with Finance Committee Chairman Max Baucus, D-Mont., but that no decision has been made about whether the panel will hold a hearing or even a markup on the bill. “We’ll know more in a few weeks,” Wyden said. 

Michael Petricone, the Consumer Electronics Association’s vice president of government affairs, voiced frustration with the criticisms of the OPEN Act, which he described as a “reasonable solution” to a real problem. He said that combating piracy either "is a priority or it's not” for the content industry.

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