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SOPA foes ready alternative plan--no Web blocking

Proposal from Sen. Ron Wyden and Rep. Darrell Issa offers a gentler alternative to SOPA. Instead of trying to delete allegedly piratical Web sites, the OPEN Act tries to slice off their funding.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read

A new copyright proposal backed by foes of the Stop Online Piracy Act stops short of trying to delete "rogue" Web sites from the Internet, according to a draft reviewed by CNET.

The so-called OPEN Act, expected to be announced today by Sen. Ron Wyden and Rep. Darrell Issa, takes a less censorial approach. It tries to interrupt the flow of funds to offshore piratical Web sites by targeting only Internet ad networks and "financial transaction providers" such as credit card companies.

Forcing Internet service providers and search engines to pretend that allegedly infringing Web sites don't exist, which SOPA would require, is an "overreaching approach to policing the Internet when a more balanced and targeted approach would be more effective," Wyden said earlier this year. "The collateral damage of this approach is speech, innovation and the very integrity of the Internet."

The Oregon Democrat and California Republican hope that their legislation will provide Silicon Valley companies and other critics of the Hollywood-backed SOPA bill with an alternative that they can embrace in advance of a House of Representatives committee vote on SOPA that's expected next week.

An aide to Wyden told CNET that the proposal, which stands for the Online Protection and Enforcement of Digital Trade Act, is still a discussion draft that represents a work in progress.

In an unusual move that amounts to the Wiki-fication of part of the legislative process, Wyden and Issa are hoping that members of the public visit KeepTheWebOpen.com, where they'll be able to read the bill, contrast it to other proposals, and suggest edits.

Alfred Perry, Paramount Pictures' vice president for worldwide content protection and outreach, shown here at Stanford University, told CNET that SOPA is necessary.
Alfred Perry, Paramount Pictures' vice president for worldwide content protection and outreach, shown here at Stanford University, told CNET that SOPA is necessary.

Google has already indicated it would support the OPEN Act. "We think following the money, the money that supports foreign rogue sites, is a sensible place to start," Fred von Lohmann, Google's copyright counsel, said at an event yesterday. "It was quite successful in offshore gambling... We've been very clear with members of the committee that we support that."

SOPA is broader than an earlier Senate version called the Protect IP Act. It says a network provider can be ordered to "prevent access by its subscribers located within the United States" to a targeted Web site. The Justice Department could obtain an order to be served on search engines, Domain Name System (DNS) companies, and Internet providers requiring them to take steps to prevent their customers from visiting the targeted site. That includes blocking by Internet Protocol address and possibly deep packet inspection.

The OPEN Act takes a radically different approach: what's effectively an Internet piracy court would be created under the International Trade Commission, a quasi-judicial federal agency. The ITC will investigate complaints from copyright holders and, if it decides that the Web site in dispute is "dedicated to infringing activity," it can issue a cease-and-desist order. The Justice Department may then "bring an action for injunctive relief."

The Internet piracy court would be composed of judges appointed by the ITC with "a minimum of 7 years of legal experience" who can be removed only for "good cause."

This approach isn't likely to satisfy everyone. SOPA's backers, including the Motion Picture Association of America and the Recording Industry Association of America, have made it clear that they believe a Web-blocking approach--which both SOPA and Protect IP envision--is necessary.

Alfred Perry, Paramount Pictures' vice president for worldwide content protection and outreach, told CNET last night that his company, which is part of Viacom, viewed SOPA's provisions as necessary for his industry to thrive. (Paramount is one of the MPAA's six member companies.)

A spokesman for the MPAA said his group, which along with the U.S. Chamber of Commerce has probably been the most vocal supporter of SOPA, would most likely be responding to the OPEN Act once it had a chance to review the language in detail.

David Sohn, senior policy counsel at the Center for Democracy and Technology, said that the OPEN Act struck a reasonable balance. (CDT is funded by foundations and, to a smaller extent, Internet companies.)

"Its definitions appear to carefully target true bad actors--the ones who are willfully fostering widespread infringement--while excluding general purpose platforms and social networking services," Sohn said. Follow-the-money tactics will "starve those bad actors of their financial lifeblood, rather than pursuing the futile and costly approach of messing with the Internet's addressing system," he said.

A two-page summary (PDF) of the OPEN Act released last week says that instead of awarding this broad Web deletion power to "a diversity of magistrate judges not versed in Internet and trade policy," placing it in "the hands of the International Trade Commission" is a better bet.

Wyden placed a hold on the Senate Protect IP bill earlier this year. That hold could be defeated through a cloture vote with a supermajority of 60 senators, a significant hurdle for the legislation's backers, but not an insurmountable one.

Opposition to the OPEN Act could also arise from the other side: Internet users and companies who are fed up with a lengthy list of laws enacted in the last few decades after intense lobbying from large copyright holders--and who have concluded that it's time to halt this trend. That list of new laws includes the No Electronic Theft Act in 1997, the Digital Millennium Copyright Act's anti-circumvention sections in 1998, the Family Entertainment and Copyright Act in 2005, and the Pro-IP Act in 2008. (The Induce Act, in 2004, drew too much criticism and didn't become law.)

"I think this is not a question of refinement" of the legislation, Andrew Bridges, a partner at Fenwick and West who represents tech companies on copyright, said at a Stanford University event on SOPA yesterday evening. "I think this is a question of 'Hell no!'"