It’s not every day that a Republican and a Democrat find common ground to solve a very real problem. But at this month’s International Consumer Electronics Show in Las Vegas, Rep. Darrell Issa (R-CA) and Sen. Ron Wyden (D-OR) stood side-by-side to promote legislation that seeks to combat digital pirates — the ones who let you illegally download movies and songs. The two legislators were on hand at this cavalcade of innovation and progress to garner support from the technology community for their bill, the Online Protection and Enforcement of Digital Trade Act, or OPEN, which they officially introduced on Friday.
Given the reception they met, I think Messrs. Issa and Wyden succeeded. Since first proposing the OPEN Act last December, many of America’s largest Internet companies have registered their support, including eBay, Facebook, Google, LinkedIn, Twitter, Yahoo and Mozilla. This is the exact opposite reaction these very same companies had to Congress’s original legislation, the House’s Stop Online Piracy Act (SOPA) and the Senate’s PROTECT IP Act (PIPA).
All the competing bills attempt to finesse a delicate problem: What is the appropriate role of government in regulating Internet activity? As Internet technology has progressed, this fundamental question has only gotten more difficult to answer. While the crooks are more difficult than ever to track down, we cannot condone stealing.
But neither can we condone the wanton destruction of the very openness and freedom that has made the Internet the most powerful tool in the modern era. That’s what advocates of SOPA and PIPA don’t seem to understand. The bills would bestow unprecedented power on a handful of government bureaucrats and wealthy industries to regulate Internet activity.
Alternatively, the OPEN Act, which is also supported by a group of bipartisan lawmakers, heeds the principle rule of Internet regulation: Be more open, not closed. The very drafting of the bill was done with openness in mind. First, Issa and Wyden circulated a statement of principles for other lawmakers and concerned industries to debate and refine. After hearing from all sides, they released their bill — on the Internet — for all to read and submit questions and comments.
Whatever form the final bill takes, we know the broad details. Unlike SOPA or PIPA, the OPEN Act takes a narrow and targeted approach to identifying law-breakers. Only offshore sites that are “primarily and willfully” engaged in copyright infringement activity will be subject to investigation. By articulating a clear definition of “infringement” — something that neither SOPA nor PIPA does — the OPEN Act will not stifle innovation and free speech through politically motivated witch-hunts.
Also, the bill minimizes the government’s power to arbitrarily shut down a site. In fact, it takes that power out of the hands of the court system and puts the International Trade Commission (ITC) in charge of deciding disputes. After a copyright owner files a complaint, the ITC opens an investigation to determine the legitimacy of the complaint, hears testimony from the accused site’s owners, and then takes the appropriate action.
Finally, the OPEN Act doesn’t go after search engines like Google or user-generated sites like Facebook that link to or host infringing content. Rather, it seeks to combat online piracy by going after the source of the content, not the very sites that are driving Internet innovation. In nearly every case, the worst offenders are offshore sites whose sole purpose is selling stolen content.
It’s this last provision which does the most to protect the freedom and innovation of the Internet. Right now, current digital copyright law requires user-generated sites to monitor their content and take swift action should someone post infringing material. Rarely does this go beyond that step, but if it does, the copyright owner can file a cease-and-desist order, which will almost always lead to the offending content being removed. In other words, the regulation abides by the rule “Be more open, not closed.”
To be sure, Internet piracy is one of the most difficult problems facing Congress. But we should always be wary of attempts that assume the only solution is to stifle freedom. That’s never the answer, whether we’re talking about the Internet or in everyday life. The OPEN Act recognizes this, as should Congress.
Gary Shapiro is president and CEO of the Consumer Electronics Association (CEA), the U.S. trade association representing more than 2,000 consumer electronics companies, and author of the New York Times bestselling book “The Comeback: How Innovation Will Restore the American Dream.”