OPEN Act Would be Ineffective at Stopping Online Piracy
|Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog, Inc.
Principal Lecturer, PLI Patent Bar Review Course Posted: February 15, 2012 @ 8:30 am
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Simply stated, the OPEN Act would be completely and totally ineffectual and, therefore, it must be opposed. There is simply no point in enacting more pointless legislation, we have enough pointless legislation already.
Anyone who is at all familiar with intellectual property knows that thanks to the digitization of content and the advent of the Internet infringement is rampant. With great frequency articles posted to IPWatchdog are cut and pasted and posted to various websites. On a daily basis companies and even government agencies are copying IPWatchdog articles verbatim and circulating them internally, presumably believing that the internal copying and distribution is not copyright infringement. Being a content creator, whether large or small, is exceptionally difficult because most people either don’t care or they don’t stop to think about what they are doing.
Content creators cannot create in a vacuum devoid of economic reality. If you take eyeballs away and/or provide things for free that are supposed to be paid for you are causing injury and making it all the more difficult to be a content creator. Think about it for a second. The content that you most value, is that created by commercial enterprises or people just doing it for free as a hobby in their spare time? If you are honest with yourself we both know the answer.
The industry needs, and deserves, a real solution to rampant infringement before it is too late and there are few, if any, content creators willing to invest in the creation of original content. The OPEN Act needs much work, and in fact to be a solution should more closely approximate SOPA. In fact, rather than throwing SOPA out with the bath-water it should be used as the framework, not supplanted with an entirely new and completely ineffectual solution.
What is truly tragic, however, is that real attempts to protect artists, content creators and the companies that invest in creation have been thwarted by those who would prefer to protect blatant copyright infringers. Pathetic if you ask me. But what is more pathetic is the fact that Congress would consider OPEN an appropriate compromise. Giving in to protests and offering an ineffectual solution for industry isn’t acceptable. When is this Congress going to wake up and start protecting the rights of productive members of our society rather than giving into the tantrums of freeloaders?
The OPEN Act, as introduced in the United States House of Representatives, requires businesses, individual artists and creators from across the country to litigate claims of flagrant copyright infringement against foreign rogue sites in Washington D.C., in front of the International Trade Commission (ITC) rather than in their home jurisdictions. This provision alone makes the OPEN Act completely impotent, at least as far as the overwhelming majority of artist and content creators are concerned. Sure, large entities may be capable of going after foreign rogue websites at the ITC, but what about smaller businesses and individuals? Sometimes you have to wonder whether Congress is at all in touch with the average person and small businesses that are the backbone of the U.S. economy.
Why does litigating at the ITC make no sense as a requirement? Other than mandating the jurisdiction and preventing choice of forum, which is nearly a sacred principle in the federal judicial system, the proposal raises numerous other problems. For example:
1. Many, if not most, firms that specialize in litigation before the ITC are large law firms, or at least firms with a Washington, D.C. presence. What this means is that the corresponding hourly rates for litigation before the ITC are quite high. Independent artists, content creators and small businesses are unlikely to be able to afford such representation, particularly where no damages can be recovered against the infringing site.
2. The procedure followed when a complaint is before the ITC is substantially different than the procedure followed in a Federal District Court. The practice peculiarities before the ITC increase the costs and burdens of using the forum, further making it an unsuitable forum for independent artists, content creators and small businesses. For example, litigants at the ITC must engage in a detailed pre-suit investigation and produce voluminous documentation supporting their claims even before institution of an investigation by the ITC. This process typically lasts several months and requires meetings with the ITC for evaluation of a detailed complaint and evidentiary submission prior to the opening of a proceeding. In Federal District Court the process is dictated by the Federal Rules of Civil Procedure, which rely on the substantially less onerous “notice pleading” rules. Notice pleading simply requires that parties plead their allegations and defenses in short plain statements sufficient for the parties and the court to understand the allegations and identify the issues, and disagreements, presented in the dispute. If this process is good enough for copyright infringement, patent infringement, trademark infringement, Antitrust disputes and the literally many hundreds of other types of disputes handled by Federal Courts, why isn’t it good enough to stop blatant, flagrant copyright infringement by foreign rogue websites that don’t care what damage they do to U.S. industry and the U.S. economy?
Indeed, even simple claims at the ITC can cost millions of dollars to litigate. Which independent artists, content creators or small businesses can afford millions of dollars in legal fees? Allow me to answer — NONE! How big do you have to be to see millions of dollars in legal fees as a path worth choosing? Simply put, the OPEN Act would only benefit the largest of the large. Congress will once again throw “the little guys” under the bus.
But surely determinations by the ITC will be better and more uniform than decisions of 94 disparate Federal District Courts spread all over the country, right? Well, you might think that but there is no requirement in the OPEN Act that the hearings officer at the ITC have any intellectual property experience. The only requirement of the newly created position of hearings officer is that appointees “shall possess a minimum of 7 years of legal experience and be licensed to practice law…” The Commission “may promulgate such other regulations,” but are not required to do so. Why not just require at least some technical expertise and relevant intellectual property experience in the statute? So we have to hope that the Commission does the appropriate thing. Placing faith in government to do the right thing? Sounds rather naive given the plight Congress and the Executive Branch have cooked up for us over so many years, don’t you think?
But the OPEN Act will certainly address the root problem, right? Not so fast! The OPEN Act would require proof that the foreign rogue website is primarily and willfully engaged in copyright infringement. Perhaps the niceties of proof have escaped Congress, but isn’t conclusively determining willfulness a question about the state of mind of the infringer? How is the complainant in an ITC proceeding going to be able to proof willfulness if the rogue operator simply refuses to participate in the U.S. proceeding?
Interestingly, even if you can afford to go to the ITC and you figure out how to handle proving the state of mind of a party that surely won’t submit to U.S. jurisdiction, the OPEN Act would still be ineffectual for its stated purpose. You see, pursuant to Section 337, the Commission is authorized to issue two types of remedy orders: (1) exclusion orders; and (2) cease and desist orders. An exclusion order directs the U.S. Customs and Border Protection to exclude articles from entry into the United States. A cease and desist order directs the defendant in the Commission investigation to cease its unfair acts. Unlike exclusion orders, cease and desist orders are enforced by the Commission, not by U.S. Customs.
Unfortunately, the OPEN Act only authorizes cease and desist orders, not exclusion orders. Exactly how is the ITC going to get foreign rogue websites to comply with a cease and desist order? Ask pretty please, perhaps? It is ridiculous to think that those who flagrantly are infringing copyrights will comply with a cease and desist order, even if it comes with sugar on top!
Why in the name of logic would Congress want to provide an ineffectual and extremely expensive paper-tiger remedy? The fact that this non-solution will make them feel good, allow for the issuance of press releases and the appearance of an accomplishment doesn’t change the reality that OPEN will not be a solution, pure and simple.
It almost seems as if Congress doesn’t understand the industry, or perhaps they want to make it more difficult to shut down foreign rogue websites that are causing real and substantial damage to artists and content creators in the United States. Sometimes any more it seems as if Congress is more interested in protecting the rights of foreigner than the rights of U.S. citizens and businesses. This is a truly troubling, and puzzling trend.
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Posted in: Congress, Copyright, Gene Quinn, Internet, IP News, IPWatchdog.com Articles, US Economy
About the Author
Gene Quinn is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.