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House Bill to Involve ITC in Online IPR Infringement Introduced Amid Waning Support for Competing Measures

Friday, January 20, 2012
Sandler, Travis & Rosenberg Trade Report

Rep. Darrell Issa, R-Calif., introduced Jan. 18 the House companion to a Senate bill that would give the International Trade Commission a direct role in the growing fight against online intellectual property rights infringement. H.R. 3782, the Online Protection and Enforcement of Digital Trade (OPEN) Act, is being characterized as a more moderate alternative to two similar measures that were the subject of widespread protests this week.

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.

By contrast, the Stop Online Piracy Act (H.R. 3261) and the Protect IP Act (S. 968) focus efforts against online piracy through the Department of Justice, and opponents fear they could open the way for online censorship. Rep. Issa said the Jan. 18 “blackout” of numerous Web sites in protest of SOPA and PIPA “underscored [their] flawed approach,” whereas the OPEN Act offers “a targeted, effective solution to the problem of foreign rogue websites stealing from American artists and innovators.”

Despite this week’s protests and the resulting withdrawal of support by some lawmakers, Senate Majority Leader Harry Reid said he still intends to hold a Jan. 24 vote on whether to proceed toward consideration of PIPA. House Speaker John Boehner acknowledged a “lack of consensus” on SOPA, but House Judiciary Committee Chairman Lamar Smith said he “expects to move forward” with the bill in February.

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