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Andrea Peterson

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Posted at 01:00 PM ET, 12/14/2011

Issa on the OPEN Act’s strengths and weaknesses

Rep. Darrell Issa (R-Calif.) (Harry Hamburg - AP)
The controversial anti-piracy bill in the House is expected to head to a committee vote on Thursday. The proposed Stop Online Piracy Act continues to face criticism even after a manager’s amendment introduced by Rep. Lamar Smith (R-Texas).

Opponents of the Stop Online Piracy Act (SOPA), including Silicon Valley tech giants such as Google co-founder Sergey Brin and Twitter co-founders Jack Dorsey, Evan Williams and Biz Stone, slammed the bill and its Senate companion, the Protect IP Act, in a Wednesday letter. Critics say the amendment retains too many of its troubling provisions, such as upholding the government’s right to block some Web sites and police the Web.

Some of those critics have also expressed their support for a competing measure, the Online Protection and Enforcement of Digital Trade Act. OPEN, as it’s known, is the brainchild of a coalition of lawmakers including Rep. Darrell Issa (R-Calif.) and Sen. Ron Wyden (D-Ore.).

In a phone interview that took place before the manager’s amendment was released, Issa chatted with Post Tech about the bill, which would put online infringement cases under the jurisdiction of the International Trade Commission. OPEN would address the problem of piracy without resorting to denial of service, he said, by empowering the ITC to cut off the money flowing to copyright infringers.

Critics have said that the OPEN Act would put too much burden on the ITC and be too costly to implement. Issa said that those critics are being “disingenuous.”

“The ITC is well-regarded as one of the most efficient ways to providing relief to those who import patented and other counterfeit goods,” he said. “They have a record of efficiency and speed.” He added that expanding the ITC would not be as expensive as processing the cases in the federal court system, since the commission — for example — doesn’t have to finance the cost of juries. He also said that federal judges often have to set aside these civil cases in favor of criminal cases, which would not happen at the ITC.

“They [the ITC] have a rocket docket, dispose of these cases quickly and have an extremely good record on appeal,” he said.

He said that OPEN is also intended to deal only with imported goods, so the court would just have to follow the money to offshore companies infringing on copyrighted material, and not run after distributors in the United States as well.

“Additionally, the ITC has the ability to recover costs,” he said. “That could bring down the cost to make it little or nothing. There’s a cost, but it still costs more to do it in the federal court system and that is a more expensive solution, period.”

Issa also addressed the concern that the ITC, which already deals with a large volume of cases, would be burdened by the extra workload. He argued that these infringement cases, unlike the complicated analyses of patent rights, can be relatively simple.

If, for example, there’s a complaint about someone pirating a movie from Russia, Issa said, the court only needs to figure out if the materia l is being pirated and if copyright is being violated. From there, the ITC has to work out how to stop the flow of money that allows the movie to be downloaded. “That’s a complex issue the first time, but fairly quickly, [the ITC] will develop expertise to a point where they have a relationship” with the banking industry to make it a quicker process.

What OPEN can’t do, Issa said, is regulate domestic activity. He said he support an ITC model in the United States.

“One thing that’s not in my bill — but I’ve had conversations with Judiciary about — is a companion bill for domestic cases. The ITC should be a model for dealing with patent infringement and IP theft of all sorts in a cyber world,” he said. “I think there’s a domestic answer that needs to be worked on, SOPA was marketed as foreign piracy bill and the ITC is not the right place for domestic disputes, though it would be the right model for a joint effort from the FTC and from the courts.”

He said that while some specialty courts have proven to be a “waste of time,” it could work with Internet cases, which require fast action.

Issa, who expects to introduce a draft of the bill in the next few days, said that posting the draft of the measure online has provided lawmakers with a great way to engage with concerned constituents. “This is a grand experiment,” he said, adding that he will continue to post the bill online to field comments from Web users as the process continues.

By  |  01:00 PM ET, 12/14/2011

Tags:  ip

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