Critics of anti-piracy legislation pending in Congress have offered an alternative plan to use trade laws to combat rampant online infringement overseas.
The proposal, unveiled Friday, would enable a copyright holder — like a studio or record label — to petition the Intl. Trade Commission to launch an investigation. The ITC could then issue a cease-and-desist order against a foreign website that provides unauthorized digital content or facilitates the importation of counterfeit goods.
The order also would compel payment processors and ad services to stop offering support to the sites. The ITC also would need to find that the foreign website is “primarily” and “willfully” engaging in infringement of U.S. copyrights.
The proposal was authored by Sen. Ron Wyden (D-Oregon), Sen. Maria Cantwell (D-Wash.), Sen. Mark Warner (D-Va.) and Sen. Jerry Moran (R-Kansas), as well as Rep. Jason Chaffetz (R-Utah), Rep. John Campbell (R-Calif.), Rep. Lloyd Doggett (D-Texas), Rep. Anna Eshoo (D-Calif.), Rep. Zoe Lofgren (D-Calif.) and Rep. Jared Polis (D-Colo.).
The lawmakers oppose the Stop Online Piracy Act in the House and sister legislation in the Senate, the Protect IP Act, both of which are aimed at curbing so-called rogue websites that operate overseas. Critics have said that the bills are written too broadly and could do harm to the technical infrastructure of the Internet and even threaten free speech and innovation.
The lawmakers of the alternate plan said in their proposal that “by putting the regulatory power in the hands of the International Trade Commission — vs. a diversity of magistrate judges not versed in Internet and trade policy — will ensure a transparent process in which import policy is fairly and consistently applied and all interests taken into account.”
They noted that their proposal would merely be extending procedures that the ITC already employs.
“The public would be notified of the investigation and respondents would have a right to be heard, as well as other interested parties,” they said in a statement. “Final ITC determinations could be appealed in U.S. court.”
The latest proposal also would give the ITC the power to issue expedited cease-and-desist orders if urgency is demonstrated, and also would prescribe sanctions for those who try to abuse the system. The ITC also would have the power to issue temporary and preliminary cease-and-desist orders. Entities that comply with the ITC orders would be given “appropriate immunity,” the proposal stated.
The Stop Online Piracy Act has the backing of House Judiciary Committee chairman Lamar Smith (R-Texas) and is scheduled to come to a vote on Dec. 15. A House Judiciary Committee aide said that the proposal to transfer jurisdiction of enforcement to the ITC “would be a dramatic and costly expansion of the federal bureaucracy.”
The aide also noted that the proposal omits language that “would require search engines, like Google, to block the ‘importation’ of a link to a foreign rogue website,” which would protect “the ability of criminals to continue to exploit search engines to promote the theft of American intellectual property.” The aide also noted that the ranking member of the Senate Finance Committee, Sen. Orrin Hatch (R-Utah), is a sponsor of the Protect IP Act, and that there is “no indication” that the Finance or Ways & Means committees would advance the legislation.