December 08, 2011

Wyden-Issa Release Draft Digital Trade Legislation

Launch website providing an unprecedented opportunity for members of the public and stakeholders to participate in the legislative process

Washington, D.C.  Unveiling a proposal that both fights the unauthorized sale of digital goods and protects Internet security, commerce and speech, U.S. Senator Ron Wyden (D-Ore.) and U.S. Congressman Darrell Issa (R-Calif.) today released a draft text of legislation that would use trade laws to address the flow of infringing digital goods into the United States.  The draft legislation is based on the broad legislative framework that U.S. Senators Cantwell, Moran, Warner and Wyden and U.S. Representatives Lofgren, Chaffetz, Campbell, Doggett, Eshoo, Polis, and Issa released last week.

The Online Protection and Enforcement of Digital Trade (OPEN) Act is now available at, where visitors will have an unprecedented opportunity to review the legislation, submit comments, suggest edits and even ask questions about the legislation with a new tool called Madison.  Interested members of the public, industry and advocacy organizations and even those supporting alternative approaches to protecting IP are invited to visit the site and offer feedback.  Senator Wyden and Congressman Issa say that the site’s discussion will provide “invaluable” feedback as they work to finalize the legislation.

 “Building on the International Trade Commission’s existing IP expertise and authority makes it possible to go after legitimate cases of IP abuse without doing irreparable harm to the Internet.  It also just makes sense,” said Senator Wyden.  “It is our hope that proponents of other approaches won’t just dismiss our proposal, but will instead take this opportunity to engage us on the substance.  Yes, IP infringement is a problem, but the Internet has become such an important part of our economy and our way of life that it is essential for us to get the policies that shape its future right.”

 “Butchering the internet is not a way forward for America,” said Rep. Issa. “The OPEN Act empowers owners of intellectual property by targeting overseas infringers while protecting the rights of lawful Internet entrepreneurs and users.  The Internet is one of the fastest growing sectors of our economy, keeping it open is critical to job creation and our economic recovery.”

 The OPEN Act would combat the flow of infringing digital goods into the United States by expanding the International Trade Commission’s existing authority to enforce copyright and trademark infringement as it currently applies to the import of physical goods.  While downloading a movie from a foreign-registered site is akin to importing a good from a foreign company, U.S. trade laws have failed to keep pace with the digital economy and have yet to extend the protections that U.S. rightsholders enjoy in the physical world to the online world.

The OPEN Act would expand those protections and empower U.S. rightsholders to petition the ITC to investigate cases of illegal digital imports just as they currently petition the ITC to investigate infringement cases involving physical goods.

While complex and difficult issues would take the ITC time to investigate and resolve, investigations into simple and obvious cases, like the “worst-of-the-worst foreign rogue websites,” could be handled in a matter of days.

In all cases, however the ITC would create a transparent and adversarial process in which all parties would have an opportunity to be heard and IP rules would be consistently applied.

In the event that an ITC investigation finds that a foreign-registered website is “primarily” and “willfully” infringing on the IP rights of a U.S. rights holder, the commission would issue a cease and desist order that would compel payment processors (like Visa and Paypal) and online advertising providers to cease doing business with the foreign sites in question.  This would cut off financial incentives for illicit activity and deter these unfair imports from reaching the U.S. market.

Unlike other legislation being advanced in Congress, the OPEN Act would not undermine the structure of the Internet by interfering in the Domain Name System (DNS) and would target only sites “primarily” and “willfully” engaging in infringement.   By employing such a clear and targeted definition of infringement, the OPEN Act will ensure that only legitimate infringement cases are pursued and that sites engaged in free speech or the fair use of content do not become collateral damage.

To review the OPEN Act with Madison and learn more about how it compares with other approaches to protecting intellectual property visit: