PIPA, SOPA and OPEN Act Quick Reference Guide

The last month or so has seen a flurry of anti-piracy, online infringing, copyright-related bills.  The latest newcomer is the Online Protection and Enforcement of Digital Trade Act or OPEN Act (S. 2029).  Introduced on December 17, 2011 by Sen. Wyden (D-OR), along with Senators Moran (R-KS) and Cantwell (D-WA), the OPEN Act is being heralded as a more palatable alternative to existing anti-piracy bills – The Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 or PIPA (S. 968), and The Stop Online Piracy Act or SOPA (H.R. 3261).

All three bills take aim at any website beyond U.S. borders that distribute counterfeit or copyright infringing products.   To capture how all three bills compare and contrast, I’ve constructed the PIPA, SOPA and OPEN Act Quick Reference Guide (pdf).  Not meant to be comprehensive (it would be pages and pages), nor too legalese (I’m a librarian, not a lawyer – although I did consult our legal consultant), the chart helps depict the nuanced and not-so-nuanced differences among the bills.

What you’ll see (hopefully at a glance), is unlike PIPA or SOPA, the OPEN Act focuses solely on curbing online infringement by cutting off websites’ payment processing and ad networks. In contrast, PIPA and SOPA go further in that they also incentivize internet companies to cut off access to websites.  The tactics the latter two bills employ have a potential chilling effect on 1st Amendment free speech rights and intellectual freedom, as well as weaken cyber security, and threaten privacy.

Also, the guide captures the status of the bills as of today, January 10.  It is worth noting that the bills are in the midst of the legislative process – the U.S. House Judiciary committee will resume markup of SOPA on January 17th and the U.S. Senate has scheduled a cloture vote on PIPA for January 24th.  In addition, House Committee on Oversight and Government Reform Chairman Rep. Issa (R-Calif.) announced a hearing has been scheduled for January 18th on the potential impact of Domain Name Service (DNS) and search engine blocking.

The ALA will continue to voice strong opposition to PIPA and SOPA, while further analysis of the OPEN Act is needed.

Posted in Copyright, Intellectual Freedom, OGR, Privacy & Surveillance, Telecommunications, Washington Office News Tagged with: , , , ,
5 comments on “PIPA, SOPA and OPEN Act Quick Reference Guide
  1. Rory Litwin says:

    One concern is with the standards for determining whether something is infringing. What is sufficient to bring about enforcement? In many contexts today, all that is necessary is for someone (well, a corporation) to assert copyright ownership. The recourse for someone who wants to dispute the order on fair use grounds or based on an actual disagreement about who owns the rights is after the fact, in the policies of YouTube and the like. In these bills, are the standards for determining infringement similar?

  2. Corey W says:

    The bills each have different standards, which in turn are somewhat different from the standards in normal infringement actions. That’s part of what makes this issue so complicated!

    For the DOJ part of SOPA, the DOJ must prove to a federal district court that a website is a “foreign infringing site.” For the private right part, the IP owner must prove to a court that a website “is an Internet site dedicated to theft of U.S. property.” “Foreign infringing site” and “Internet site dedicated to theft of U.S. property” themselves have technical, multi-part definitions.

    PIPA uses a different term, “Internet site dedication to infringing activity,” with its own complicated definition. The DOJ or an IP owner must prove to a court that a website meets this standard.

    In OPEN, the ITC conducts a proceeding to determine whether a website is “an Internet site dedicated to infringing activity.” Although this is the same term as in PIPA, the definition in OPEN is significantly narrower than in PIPA. Thus, OPEN could only be applied to the “worst of the worst,” while SOPA and PIPA could sweep up legitimate sites with some infringing material uploaded by users.

    So much for attempting to avoid legalese! (Yes, I did confer with our legal consultant on this reply.)

  3. Rory Litwin says:

    Thanks! That’s very informative.

  4. crystal says:

    @Corey W

    Yes, all of that After they strip your domains away from you! It could take years to get to a court room, only to be judged by some old goat who has no idea how to even use the internet!

    How can they make and pass laws they don’t even understand!? #sopa is a Bad joke!

  5. Bob Jones says:

    I created a WordPress plugin which will allow all WP bloggers to easily participate in creating more awareness against SOPA. Pleaae spread the word, we need every blogger we can get to help against SOPA. http://anseocompany.com.au/stop-sopa-and-pipa-wordpress-plugin/

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