The Recording Industry Association of America (RIAA) says that a proposed alternative to the draconian Stop Online Privacy Act (SOPA) won't work, and that it has found the patent case to prove it: Kodak's patent claims against Apple and BlackBerry maker Research In Motion (RIM). Two days before the new year, the US International Trade Commission announced that the Commission will place the "target date" for review of the case at September 21, 2012.

Aha! declares Mitch Glazier, Senior Executive Vice President for the RIAA, in a blog post. This delay means that the ITC "will have taken 33 months to decide on a high-stakes and time-sensitive issue. So this is the 'expedited' process SOPA opponents are embracing as an alternative in the proposed OPEN bill?"

Senator Ron Wyden (D-OR) and Rep. Darrell Issa (R-CA) are the principal advocates of OPEN, which moves antipiracy enforcement from the Department of Justice and relevant courts to the ITC. Infringement appeals effectively become trade sanction questions rather than criminal disputes.

That's the problem, Glazier insists.

"Why in the world would we shift enforcement against these sites from the Department of Justice and others who are well-versed in these issues to the ITC, which focuses on patents and clearly does not operate on the short time frame necessary to be effective?" Yet "more proof" that "the OPEN Act is not a meaningful solution to a serious problem," his post warns.

Scene preview

This instance may indicate that the ITC can't handle these matters. Other observers have raised legitimate questions about the agency's qualifications to tackle copyright infringement issues. On the other hand, delay is also a necessary corollary to a truly adversarial process in which the other side objects and introduces evidence and arguments.

That is, in fact, what happens in patent disputes like the aforementioned. In January of 2010, Kodak presented the ITC with its complaint against Apple and RIM, which the agency accepted for consideration. The camera company cited five allegedly infringed patents, among them two digital imaging related holdings: "Electronic Camera for Initiating Capture of Still Images while Previewing Motion Images" (US Patent #6,292,218) and Single Sensor Color Camera with User Selectable Image Record Size" (US Patent #5,493,335).

Patent 218, the complaint noted, describes and claims:

an image capture and processing device with certain components for "previewing" the scene to be captured. The patent discloses the first effective color preview for a digital camera - a key feature that requires managing the enormous amounts of data present in color images, accounting for the complex manner in which the color pixels of an image interact, and processing image data at speeds sufficient to present moving images on a display that accurately reflect the scene to be captured.

Kodak asked the ITC for an order excluding from US markets any RIM or Apple mobile devices and related components that infringe on these patents. As you might guess, Apple and RIM aggressively sought to defend their methods from Kodak's charges, given how indispensable image previewing has become to mobile gadgetry. Apple fired back with a series of patent counter-complaints against Kodak filed in a US District Court and at the ITC.

But the Commission rejected those charges about five months ago. To be specific, it decided not to review an ITC Administrative Law Judge's call clearing Kodak of Apple's patent infringement claims. Following that call, the Commission partially accepted, partially rejected, and partially remanded an Admin Judge's ruling concluding that Apple and RIM hadn't violated any Kodak patents, either.

When throwing the case back in the ALJ's court, however, the presiding judge retired and a new one hadn't been recruited yet. A search for and shuffling of personnel ensued; hence, the target date for final resolution of the great Kodak/RIM/Apple patent war is now set for September. Such delays are unlikely to be common.

28 days later

Obviously, the RIAA wants people to see this lengthy deliberative process as a refutation of OPEN's "expedited" processing claims. What Glazier's post is less interested in noting are the actual provisions of the bill itself, which really, truly do include expedited action rules.

These provisions allow a rightsholder to ask for preliminary (and temporary) cease and desist orders against Internet sites, "upon a showing of extraordinary circumstances by the complainant filing a petition" for the temporary order. These can last for as long as 28 days, and the law sets a 30 day deadline for determining if a cease and desist should be granted following the beginning of a formal investigation. Once the cease and desist is issued, the complainant can take the ITC judgment to credit card companies and ad networks and cut off the rogue site's income—a wake up call, no matter what the duration of the order.

"SOPA was introduced to address the devastating and immediate impact of foreign rogue sites dealing in infringing and counterfeiting works and products," Glazier's commentary concludes. "Every day that these sites operate without recourse can mean millions of dollars lost to American companies, employees, and economy, and an ongoing threat to the security and safety of our citizens."

Perhaps, but a bill like SOPA, with its vague "dedicated to the theft of US property" provisions allowing ISPs and payment processors to block access to sites on their own also poses a threat—to a nearly uncountable number of websites, search engines, and applications that create hundreds of thousands of jobs. Maybe handing this problem over to some government agency that takes its time with complex intellectual property questions isn't such a bad idea.