The Stop Online Piracy Act (“SOPA”) and Protect Intellectual Property Act (“PIPA”) have been put on hold. But the Online Protection and Enforcement of Digital Trade Act (“OPEN Act”) is moving its way through the U.S. House of Representatives. The OPEN Act would allow copyright holders to file complaints about copyright infringement on foreign websites with the U.S. International Trade Commission, which would investigate the complaints and decide whether U.S. payment processors and online advertising networks should be required to cut off funding. The OPEN Act would apply only to foreign websites that willfully promote copyright infringement. Whereas SOPA and PIPA would enable content owners to take down a website even if one page carried infringing content.
United States Copyright owners have recourse to protect their works in foreign countries. The Berne Convention, for example, requires its signatories to recognize the copyright of works of authors from other signatory countries in the same way as it recognizes the copyright of its own nationals. Similarly, the World Intellectual Property Organization Copyright Treaty protects computer software in foreign countries. The problem for copyright owners is having to enforce their copyrights in the country where the pirate is located. Although this raises the issue of whether U.S. copyright owners should have to incur the cost to enforce their rights in foreign country, the fact is that a U.S. copyright owner may have to enforce its rights domestically too. SOPA, PIPA, and even the OPEN Act appear to benefit U.S. copyright owners by reducing the costs to enforce their copyrights. The bills treat foreign and domestic pirates differently, in that the bills apply only to the foreign pirate when domestic pirates can be as elusive as foreign pirates.
And that is the key to any antipiracy legislation, plugging the loophole where pirates can reside in areas beyond a U.S. copyright owners reach. If a foreign website is operated from a country that is not a member of treaty that recognizes U.S. copyrights, then U.S. copyright owners need some forum in which to lodge complaints and obtain relief. Moreover, the infringing conduct should not have to be willful before action is taken, but a thorough investigation or hearing should be conducted to preserve due process. SOPA, PIPA, the OPEN Act are on the right track, but they need to focus on closing the loophole.