It's a battle of the Congressional antipiracy acronyms. In one corner are SOPA and PROTECT IP, the House and Senate bills that would bring site blocking, search engine de-listing, and more to the US in an effort to stop "rogue" sites. In the other corner, today's challenger: the Online Protection & Enforcement of Digital Trade Act, called the "OPEN" Act (PDF).

OPEN has been spearheaded by Senator Ron Wyden (D-OR) and Rep. Darrell Issa (R-CA), who released draft text of the plan today on a special website that invites citizen comment and reaction before the text is finalized.

"Butchering the Internet is not a way forward for America,” said Issa in a statement.

OPEN instead moves the antipiracy process away from the courts and the Department of Justice and to the International Trade Commission (ITC)—treating the issue more as a trade problem than a criminal case. It also does away with private rights of action by copyright holders.

Rightsholders who win a case at the ITC would gain two remedies: payment processors would have to block all payments from US customers, and advertising networks could no longer do business with the site. (Site blocking isn't contemplated, nor is search engine de-listing.)

Sites can be targeted only if they have a "non-domestic domain name," if they conduct "business directed to residents of the United States" (such as advertising prices in US dollars, for instance), and if they have "only limited purpose or use other than engaging in infringing activity."

Wait, we have to prove this stuff?



The "features" of the bill are mostly negatives to rightsholders like the MPAA, which criticized the OPEN Act today. Some of the critiques have real merit—the ITC, which generally handles patent questions, can be slow, and it may currently be understaffed to handle the work.

But other critiques show that a frustrated industry would prefer to shut down its targets first and deal with challenges later. The new approach "places copyright holders at a disadvantage and allows companies profiting from online piracy to advocate for foreign rogue websites against rightful American copyright holders," said the MPAA's Michael O'Leary today in a statement. "It even allows notification to some of these companies if they want to help advocate for rogue websites."

OPEN Act SOPA PROTECT IP House and Senate House Senate Protects the rights of artists Yes Yes Yes Protects against new Internet police powers Yes No No Provides Safe Harbors for legitimate Internet businesses Yes No No Protects access to social media and legitimate websites Yes No No Ensures intellectual property cases resolved by IP experts Yes No No Targets actual criminals: foreign rogue websites Yes No No Applies due process—not banks—to judge infringement claims Yes No Yes Supports innovation and one of the fastest growing industries in America Yes No No Consistent with American calls for open Internet in closed societies Yes No No A rather partial chart by OPEN Act backers, comparing the three antipiracy bills

The MPAA worries that ad networks (like, presumably, its bête noire Google) would show up at the ITC to weigh in on the side of targeted sites. (This sort of thing happens routinely in courts, where parties appear as amici in cases of interest.) It's hard to see the problem here. Google is really going to show up to defend even sites like Chanelripoffbags.co.uk? Deeply unlikely. But if it had a reason to do so, shouldn't that reason be heard before giving the axe to a site's US-based advertising and sales? Rightsholders certainly need the ability to move with reasonable speed, and the new bill does provide for quick action in certain cases, but general complaints that one might actually have to argue more against someone who disagrees with you aren't going to gain much traction.

It's unclear how much support OPEN will receive; the current chairs of the House and Senate Judiciary Committees have pledged to shepherd PROTECT IP and SOPA to the floor, and some rightsholders say there's simply no time to start the legislative process from scratch.

In addition, Hollywood is already trying to frame the debate as one about being soft on crime. As the headline from today's MPAA statement puts it, "DRAFT LEGISLATION BY REPRESENTATIVE DARRELL ISSA AND SENATOR RON WYDEN GOES EASY ON INTERNET PIRACY."

This line of attack fits neatly with one offered by SOPA sponsor Lamar Smith (R-TX), who last week basically accused Google of wanting to profit from piracy. "Unfortunately, there are some critics of this legislation who are not serious about helping to protect America’s intellectual property," he wrote. "That’s because they’ve made large profits by working with and promoting rogue sites to U.S. consumers. 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. Their opposition to this legislation is self-serving since they profit from doing business with rogue sites."