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ITC Could Get Leading Role in Fight Against Online IPR Infringement

Thursday, December 22, 2011
Sandler, Travis & Rosenberg Trade Report

The International Trade Commission would take a direct role in the growing fight against online piracy under legislation introduced Dec. 17 in the Senate. Sen. Ron Wyden, D-Ore., introduced the Online Protection and Enforcement of Digital Trade (OPEN) Act (S. 2029) as an alternative to the Stop Online Piracy Act (H.R. 3261), which is being championed by House Judiciary Committee Chairman Lamar Miller, R-Texas, and the Protect IP Act (S. 968) pending in the Senate.

According to information from Wyden’s office, the OPEN Act would expand the ITC’s authority to enforce copyright and trademark infringement to both physical and digital goods. U.S. rights holders would be able to petition the ITC to investigate cases of illegal digital imports just as they currently do with respect to physical goods. If a subsequent ITC investigation found that a foreign-registered Web site is “primarily” and “willfully” infringing on the IPR of a U.S. rights holder or enabling imports of counterfeit merchandise, the ITC would issue a cease and desist order that would compel payment processors (like Visa and Paypal) and online advertising providers to cease doing business with that Web site. Temporary and preliminary orders could be issued when immediate action is necessary to prevent imminent harm.

Wyden said this process would allow “simple and obvious cases, like the ‘worst-of-the-worst foreign rogue websites,’” to be handled in a matter of days. However, he also emphasized that the ITC “would create a transparent and adversarial process in which all parties would have an opportunity to be heard and IP rules would be consistently applied.” Final ITC determinations could be appealed in U.S. court, and there would be “appropriate immunity” for entities complying with ITC orders.

By contrast, the SOPA focuses efforts against online piracy through the Department of Justice. A fact sheet from the House Judiciary Committee states that the bill provides DOJ with authority to seek injunctive relief against Web sites on foreign top-level domains as well as the ability to seek court orders blocking infringing Web sites from accessing the U.S. market. The SOPA would also obligate rights holders, rather than the federal government, to work with financial intermediaries and online ad providers to sever ties with rogue Web sites.

Wyden and other supporters of the OPEN Act believe it offers a better solution. “The OPEN act meets the same publicly-stated goals as SOPA or Protect IP without causing massive damage to the Internet,” Wyden said. “These other bills tread deeply into online censorship and blacklisting in order to protect intellectual property.” By contrast, he added, treating digital infringement as a matter of regulating international commerce will allow authorities take into account “important issues pertaining to cybersecurity and the promotion of online innovation, commerce and speech.”

The SOPA was the subject of a House Judiciary Committee markup last week, but work on the bill is not expected to resume until lawmakers return from their holiday recess in late January. Smith has already modified the bill once in response to concerns raised by critics and has indicated a willingness to consider additional changes. No further action has yet been scheduled for the OPEN Act.

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