the Open Act, What others are saying…

Although it’s great to have a POV, it’s also good to hear what the other side is saying from time to time. This is a handout going around the Hill distributed by pro-sopa interests.



Everyone agrees that foreign criminal Internet operators who steal American products and jobs must be stopped. No legitimate Internet service should profit from illegal activity or lead its users to illegal sites. The OPEN Act does nothing to stop this behavior and may even make the problem worse. It does not establish a workable framework, standards or remedies. It 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.

Sets dangerous precedents with impossibly high, useless standards. Even a site that openly acknowledges it is entirely composed of illegal material is exempt, as long as the material is added or used by others and not the site owner or operator. This excuses willful blindness and outright complicity in illegal activity. In addition, anyone who takes down one illegal file is immune, even if it’s simply reposted minutes later. Couple these with the virtually impossible requirement to prove that the owner or operator of an elusive foreign site acted willfully, and the OPEN Act remains closed to nearly any claim, but serves as an excuse that something is being done.

Prohibits small business victims from seeking relief. OPEN Act claimants would be required to hire a lawyer with International Trade Commission expertise (among the most expensive bars in the country), come to D.C. to pursue the claim, and post a bond for the issuance of a cease and desist order (that they may not get back). This puts justice out of reach for small business American victims of IP theft.

Allows indefinite delays while the market for American works are “scooped” by foreign criminals. The OPEN Act provides no timing for initiation of an investigation, if an investigation is granted at all. A claim could languish for months or years before any action is taken. And, while the bill requires the ITC to rule on an injunction within 30 days after the start of any investigation, there is absolutely no timing given for the ruling on a temporary cease and desist order – what the bill ironically calls “expedited consideration.” Add on provisions for endless submissions by parties such as Google, hearings, etc., and relief is elusive for victims suffering while foreign site operators are allowed to continue their illegal activity.

Offers an empty toolbox. Typically, when illegal activity is found, the law provides for action against the activity itself. OPEN prohibits action against the site, and doesn’t allow the ITC’s standard exclusion order (available in other ITC claims). OPEN takes away the very tools the ITC has been granted. The relief is so limited it applies only to ad networks that directly share ad revenues with the criminal site (rendering more complicated revenue relationships immune) and only payment processors that transact with customers in the U.S. (allowing transactions for foreign rogue sites to continue with international customers by U.S. providers). And, of course, the White House can throw out an order for any reason, trumping an administrative decision with a political one.

Makes compliance rare. The OPEN Act actually prohibits claimants from seeking a compliance order from the ITC. Instead, it allows only the Attorney General of the U.S. to bring an action against anyone who ignores an order. The victim is left powerless to ensure compliance even if they win.

It’s anticompetitive. The bill’s narrow view of financial transaction provider and Internet advertising service conveniently exempt services such as Google Wallet and Google’s Doubleclick, but include Visa and MasterCard. And, further benefitting Google which has 90% of the search market on the Internet, the bill completely exempts search engines from any responsibility.

The OPEN Act is an excuse, not an answer.

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