Ars Technica is reporting on the OPEN Act from Senator Wyden (D-OR) and Darrell Issa (D-CAL) as an alternative to SOPA/Protect-IP. I congratulate Senator Wyden on producing an alternative after several years of thwarting present and previous bills that would have provided greater protections to American intellectual property. OPEN has some very good points, however it also has numerous weaknesses.
Excluding search engines or other forms of cataloging of rogue content leaves the barn door open. Too many warez focused websites generate their revenue by cataloging other sites (often also owned by the same company that owns the search engine – not talking about Google here) and attaching revenue generating advertising systems to them. Such search engines or catalogers should in turn, receive notices of who these rogue sites are and be required to remove them from their catalogs (ie blacklist those sites), if they want to remain within a safe harbor.
What Eric Goldman likes, but I do not, is the definition of a rogue website. The internet is an amorphous entity that has little to do with borders, however a substantive amount of that traffic goes through the United States. The United States should first and foremost enact laws that protect US citizens and the interest of the United States, and then allow negotiations to begin via foreign trade policy on a partner-to-partner basis so that its partners’ citizens can also benefit from it.
What many people do not realize is that the United States routinely places itself at a disadvantage because it does not usually work this way. For example – consider in the late 1980′s when France wanted equal access to Japan’s automobile market that France was giving to Japanese companies. Every vehicle that was imported into Japan had to undergo an inspection, and the inspection center was hundreds of miles away from the ports where vehicles could enter the market, vastly increasing the transportation costs of imported vehicles. In response to an unbending Japanese government, France set up an inspection center for Japanese imported vehicles that was hundreds of miles away from the port within France – and only vehicles from Japan or Japanese companies had to use it. The end result was that, when it came to this particular problem, France and Japan found a common frame of reference and the problem was later resolved, because it was a tit-for-tat negotiation between partners. As onerous as some provisions are (in SOPA or even OPEN), most of our valued trade partners have IP to protect. They too, want equal protection under US laws for their intellectual property because of revenue generated from within the US market.
Mr Goldman also seems to like the minimizing the scope by narrowly defining harmful portions of websites rather than the websites themselves. That’s the same kind of gutlessness we have now with DMCA takedown notices. A rogue site gets a DMCA takedown notice, removes the illegal posting – then its up again the next day. By accepting the DMCA takedown notice and not challenging it, the website owner is, in essence, agreeing that the posting was illegal. Allowing illegal posts to continue by the same poster is contributory. For this reason, the website owner must have a uniform way of dealing with these illegal users with some assurance that the same person won’t easily create a new, duplicate account to continue.
I am glad to see Senator Wyden finally coming up with a solution. It is a start.