Is New Anti-Piracy Bill Less of a Threat to Hyperlocals?

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On December 10th, Sen. Ron Wyden (D-Ore.) and Rep.Darrell Issa (R-Calif.) submitted a new alternative anti-piracy bill that may be less threatening to hyperlocal news sites than the current Stop Online Piracy and Protect IP acts that are currently pending in Congress.

Several weeks ago, this Street Legal column reported that two bills pending in Congress, the Protect IP Act and the Stop Online Piracy Act (also called the E-Parasite Act”), may put a squeeze on hyperlocal news sites. The two bills are designed to combat rogue sites that sell counterfeit goods, such as counterfeit movies. However, the acts give content owners broad remedies to have search engines, social networks, ad networks, and domain name services block access to Web sites on grounds that a site is infringing. This ability to blacklist, according to Rebecca Jeschke of the Electronic Frontier Foundation, could hurt hyperlocal news publishers if the remedies are applied too aggressively.

Critics claim the bills, promoted by large content companies such as movie studios, were overreaching. The entertainment industry says the bills are needed to stop content theft.

Sen. Wyden and Rep. Issa now offer as an alternative the “OPEN Act” bill. They created  the KeepTheWebOpen site to promote their bill and to give visitors the ability to comment on the bill. On the site, the legislators state: “Americans have a right to an open internet. Our duty is to protect these rights.”

The remedies to combat rogue sites are more narrow under the OPEN Act. Unlike SOPA and Protect IP, the OPEN Act:

  • Requires a rights owner to petition the International Trade Commission against a rogue website.
  • Requires that the ITC investigates the claim, and then can decide whether to tell the rogue site to (1) stop its conduct, (2) be subject to any other legal action that already exists for the rights holder, and (3) allow the rights owners to take the ITC determination to payment service providers and ad networks and have them cut off the flow of money to the rogue sites. OPEN Act would not touch the domain name system or search engines.

The OPEN Act holds less risk for hyperlocal news publishers, because it does not give a rights owners an immediate, fast solution to blacklist a site. Ms. Jeschke of the EFF, told Street Fight on November 14, 2011 that under SOPPA and Protect IP, “Hyperlocal news sites would be as vulnerable as any other site on the internet, particularly if they incorporate user-generated content.”

Eric Goldman, an Associate Professor of Law at Santa Clara University School of Law, wrote in his blog that OPEN Act is a better start than SOPA and the Protect IP acts, but still needs work: “OPEN provides a useful starting point for a sensible conversation that could actually lead to acceptable compromises. For that reason alone, I think Congress should immediately stop all work on SOPA/PROTECT-IP and redirect that energy towards vetting this proposal.” On the other hand, the Motion Picture Industry of America, doesn’t think the OPEN Act Bill does enough to protect copyright holders. “The bad news is that this draft legislation fails to provide an effective way to target foreign rogue websites and goes easy on online piracy and counterfeiting,” Michael O’Leary of the MPAA posted on an MPAA blog.

This article is provided for information only and does not provide legal advice.

Brian Dengler is an attorney with Vorys Legal Counsel and journalist who covers legal issues in eMedia. He is a former vice-president of AOL, Inc., a former newspaperman, and an EMMY-winning TV journalist. He teaches new media issues as an adjunct at Kent State University and formerly at Otterbein University.