OPEN Act Falls Short for Artists and Creators

The process, hurdles and cost burdens proposed by the OPEN Act make this an unworkable alternative for artists and creators.
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As the House Judiciary Committee readies for markup of the Stop Online Piracy Act today, much attention is also being paid to a competing proposal that would utilize the International Trade Commission (ITC) as the venue for enforcing copyrights and trademarks online against foreign based rogue websites, outside of US jurisdiction. While the creative community appreciates the recognition by bill sponsors including Rep. Issa and others that there is a pressing need to address the massive online infringement being carried on by rogue sites, the proposal unfortunately does not provide an effective enforcement tool to artists and creators for a variety of reasons.

The proposal relies on the ITC as the venue for addressing rogue sites -- an approach that will be impractical for all but the largest corporate litigants. Forcing small businesses and individual artists and creators across the country to litigate claims against foreign rogue sites in Washington D.C., before the ITC rather than in their home jurisdictions would effectively deny them their day in court. They would have to travel to Washington, hire an attorney specifically admitted to practice before the ITC, and participate in a process that takes on average 18 months to complete. It can cost several million dollars to litigate a case before the ITC. This would be impossible for all but the largest corporate interests to afford.

Curiously, the bill actually sets up more hurdles for individual artists and creators addressing rogue sites, than currently apply to large corporate litigants pursuing patent remedies before the ITC. First, the bill would deny artists and creators the main remedy the ITC has historically been empowered to issue -- an exclusion order preventing infringing goods from entering the U.S. Instead, a successful claim would only result in a "cease and desist" order from the ITC, an odd remedy, given that the rogue sites in question have already demonstrated their utter disregard for U.S. law and international norms.

Artists would also be charged for the ITC's costs related to the investigation/adjudication. Notably, such costs would be assessed ONLY on the complainant in an action -- not on any party intervening, or on the alleged rogue site. And the costs are assessed regardless of whether the complainant prevails on the merits. This is unprecedented in ITC practice, as well as in practice before Federal District courts. Charging artists to gain access to the justice system means only the wealthy will be allowed to defend their legal rights. Such fees to gain access to legal redress in the Nation's judicial system are unprecedented, and fly in the face of the notion of "justice for all."

It is hard to understand why the bill would propose to assess these sorts of costs to individual artists pursuing copyright claims, when no such fees are required of the large technology companies that traditionally use the ITC venue to resolve their patent claims. Ironically, corporate litigants in the patent space appear to be entitled to better remedies (an exclusion order) without having to pay the fees associated with the adjudication of their cases.

There are also other additional and worrying variations from normal ITC practice:

The proposal encourages intervention by "other interested parties" and lobbying of the Administration to overturn final orders. ITC rules already allow any interested party to intervene in a proceeding at the Commission's discretion. The Issa proposal imposes new notice requirements on artists and creators for the purpose of making it easier for third parties to intervene. This puts individual artists and creators and small business owners in the untenable position of having to litigate a case outside their home jurisdiction not only against a foreign rogue site, but against its domestic supporters, who may very well be reaping profits from the site's illegal activities earned from illegally monetizing the artist's work.

The Issa proposal also sets up a new process by which interested parties could lobby the Administration to disapprove a fully adjudicated order at any time. The ITC's rules already provide for a post-determination 60-day waiting period during which the President may disapprove an order by the Commission. This process is rarely used, and has in recent years been delegated to the US Trade Representative. The Issa proposal imposes an additional, new, presidential hurdle -- presumably not applicable to other litigants -- whereby the president may terminate an ITC order for "policy reasons" at any time -- even years after the order has issued.

Whereas SOPA and the Protect IP Act establish a system for adjudicating claims before politically independent Federal Courts, the Issa proposal allows opponents of IP protection, or those who reap profits from rogue websites to trample the legally adjudicated rights of creators by lobbying the Administration. That is directly contrary to the notion of protecting individual rights by an independent judiciary. Why should artists and creators have their legally adjudicated interests overridden in a political forum? Our Founders referred to this as the "tyranny of the majority." Others might just call it the "tyranny of the person with the most money and political clout."

The bill delegates handling of cases against rogue sites to a new category of "hearing officers" with limited experience and no IP expertise. Although the FAQs about the Issa bill circulated by its drafters suggest that "responsible trade and foreign policy" require that cases be heard at the ITC rather than in District Courts in order to ensure that these important issues are not "determined by a diversity of judges with various levels of IP experience and expertise" the bill actually assigns cases to hearing officers who are not required to have ANY IP expertise. These officers will only be required to be admitted to practice law and have seven years general legal experience. This is insufficient training even to qualify for the partnership track at most firms practicing before the ITC.

Finally, in addition to the curious procedural obstacles set up by the proposal, the definitions and exclusions are drafted in a manner that sets up impossible evidentiary hurdles. The proposal makes clear that it applies only to sites that are foreign based and have refused to consent to US jurisdiction, but it requires proof that a website has only limited use other than infringement and that it is "primarily" and "willfully" used by its majority owner for infringement. Proof of willful intent is established by examination of the defendant's state of mind (including investigation of documentary evidence, interrogatories, requests for admission, and depositions of the officers and key personnel of a defendant company). This is impossible to accomplish unless the rogue site operator submits to U.S. jurisdiction. Other loopholes allow sites to escape liability in instances where the owner primarily and willfully using the site for infringement is not a majority owner.

Unfortunately the process, hurdles and cost burdens proposed by the OPEN Act make this an unworkable alternative for artists and creators. The Stop Online Piracy Act provides meaningful, targeted, accessible remedies to the rampant theft of U.S. intellectual property by foreign criminal websites. The House Judiciary Committee has worked to advance this legislation and it should be passed.

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