FORTUNE — A reasonable alternative to a pair of widely-reviled proposed anti-piracy laws isn’t good enough for the media industry and its congressional benefactors.
The Online Protection and Enforcement Act (OPEN) is sponsored by a bipartisan group of House members hoping to reach a compromise with the bipartisan supporters of SOPA, the Stop Online Privacy Act (this is one of the few issues on Capitol Hill these days not being fought along strict partisan lines).
OPEN would avoid the bizarrely extra-constitutional and technically dangerous measures contained in SOPA. But SOPA supporters are making up reasons why OPEN won’t work.
OPEN would simply build on existing laws and enforcement regimes to target particular sites operated in foreign countries that make available illicit goods such as pirated movies and knockoff merchandise.
SOPA, on the other hand, would make innocent third parties, such as Google, responsible for the actions of rogue operators who happen to use their services. Internet service providers would be forced to monitor their own networks, threatening privacy. And they would have to block domain names — something engineers say could disrupt the operations of the Internet. Hence Silicon Valley’s vehement opposition to a measure being pushed by Hollywood (and few others.) It’s a sledgehammer-blunt, panicky, clueless approach that would likely cause more problems than it would solve.
OPEN, by contrast, would allow rights holders to ask the U.S. International Trade Commission to enforce current laws by targeting the actual law-breakers. The ITC could, for example, demand that payment processors and ad networks cease doing business with particular pirates, once they have been identified. It comports not only with the First Amendment, but also with the Digital Millennium Copyright Act of 1998, which allows rights holders to ask sites to remove pirated material when they come across it rather than holding those sites accountable for “allowing” such material to be there in the first place. That’s why you no longer see episodes of “The Simpsons” on YouTube, for example.
Such measures are also contained in both SOPA and its Senate counterpart, Protect IP, but in those cases, enforcement would be left to the private sector or to the Justice Department — which could act arbitrarily based on the mere allegation of an infringement. Due process, a cornerstone of the American legal system, is absent. OPEN would allow challenges to complaints filed with the ITC, but would also allow for expedited review — for example, in cases where a new movie is being illicitly distributed. For enforcement to take place, it must be shown that a site is devoted solely or mostly to piracy. That would prevent a blog-hosting company from having its whole business put at risk thanks to a lone pirate using its services.
This is the ITC’s job — to enforce U.S. trade laws. OPEN would give it more power to do so largely by allowing it to cut off flows of money to pirates.
SOPA supporters argue that the ITC doesn’t have the resources for such enforcement, and that giving it those resources would be too expensive. Even before the details of OPEN were released, one congressional staffer circulated an email alleging that empowering the ITC with enforcement responsibilities would amount to “a dramatic and costly expansion of the federal bureaucracy.”
The OPEN bill doesn’t include any provisions for expanding the ITC and SOPA supporters haven’t presented any evidence that such expansion would be needed, or if it is, how expensive it might be.
Nevertheless, the proponents of a bill that would stomp all over the rights of Internet users, effectively censor content, and create new responsibilities for private companies to enforce U.S. law are making the “big government” argument.
