On December 8, 2011, a group of Senators and Representatives proposed an alternative bill aimed at combating foreign websites that engage in counterfeiting or infringement of U.S. trademarks or copyrights. The new bill, entitled “The Online Protection and Enforcement of Digital Trade Act” (the OPEN Act) was launched by U.S. Senators Cantwell, Moran, Warner and Wyden and U.S. Representatives Chaffetz, Campbell, Doggett, Eshoo, Issa, Lofgren and Polis. (Senator Wyden had previously announced his intent to block any request for unanimous consent to consider the currently-pending PROTECT IP Act in the Senate, but has proposed this bill as an alternate.)

What’s so unusual about this bill? It’s not currently available on Thomas.gov, although a recent press release available on Sen. Wyden’s website has identified the bill as having been “introduced.”  [Searches of Thomas.gov indicate that the bill will be numbered S. 2029 and will be available once received from the Government Printing Office.]  Instead, the current text of the bill can be accessed through a website called http://www.keepthewebopen.com/. Visitors to the site can create an online profile and submit suggestions for improvement of the bill. At the site, in big red letters is a button inviting users to “PARTICIPATE” and the press release announcing the launch of the website describes it as “providing an unprecedented opportunity for members of the public and stakeholders to participate in the legislative process.”

The text of the bill can be found in PDF format, and a summary document entitled, Fighting the Unauthorized Trade of Digital Goods While Protecting Internet Security, Commerce and Speech, explains the purpose of the bill. (An additional section-by-section summary of the bill can be found on the Keep the Web Open site.)

The bill sponsors explained that this bill is intended to place jurisdiction over policing imports into the U.S. from these foreign web sites back in the hands of the International Trade Commission (ITC), thereby allowing this process to use already existing ITC procedures instead of creating new frameworks – thus potentially increasing due process protections and consistency of rulings among the arbiters. The bill also authorizes the dramatic increase of staffing in the ITC in order to permit it to absorb the new responsibilities.

Here’s how it would work:  a U.S. rights holder who believes that a particular web site violates its rights may submit a complaint to the ITC, which will launch an ITC investigation into the operation of the site. If the ITC determines that the site indeed qualifies as an “Internet site dedicated to infringing activities,” it may generate a cease and desist order directing that the site stop its infringing activities. This order can then be served on financial transaction providers or Internet advertising services. The ITC will also submit its determination, the record upon which it is based, and any cease and desist order that it generates to the President, who may “disapprove” of the determination and cease and desist order, causing the order to be terminated. [These provisions were present in a version of the bill available on http://www.keepthewebopen.com/ as of December 28, 2011.]

In some respects, this bill follows the main tenets of the PROTECT IP Act and the Stop Online Piracy Act and adopts some of its structure, with a major difference being the use of the ITC as arbiter over the allegations made against the allegedly infringing website, instead of the myriad federal district courts across the country. (Additional differences are summarized in this chart.) The theory seems to be that the ITC is used to disputes over IP claims, and therefore would be an appropriate judge of the presence of infringing or counterfeiting content – where not all district courts and district court judges are experienced in intellectual property disputes.

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