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The OPEN Act clearly targets non-domestic sites and the financial transaction providers and Internet advertisers with relationships to non-domestic sites. The Wikimedia community does not have projects that may fall within the definition of "non-domestic sites."
The Electronic Frontier Foundation (EFF) labeled the immunity clause the "vigilante provision" because it may result in financial transaction providers or Internet advertising services proactively cutting off payments to avoid liability. The vigilante provision is for non-domestic sites, but it may indirectly harm free speech and the amount of free knowledge available on the Internet.
The vigilante provision only protects financial transaction providers and Internet advertising services, so there is less danger of entire websites being shut down proactively. (cf. SOPA's Sec. 104(b)(2), which extends immunity to service providers, search engines, payment network providers, and Internet advertising services).
The EFF pointed out that cease and desist orders do not include any provision for public interest. Orders are limited to situations that are "commercially feasible" (Sec. 337A(g)(2)(A)(ii)(I) and (g)(2)(B)(ii)(I); for financial transaction providers and internet advertising services) and "technically feasible" (Sec 337A(g)(2)(B)(i); for internet advertising services). There is also an affirmative defense for an operator, financial transaction provider, or Internet advertising service that does not comply with an order because it has an "unreasonable economic burden." Sec. 337A(h)(3).
The absence of a public interest exemption undervalues non-economic reasons for not complying with an order, such as education, freedom or expression.
A party can submit a complaint to the International Trade Commission alleging that a site is an Internet site dedicated to infringing activity, and the Commission will begin investigation. Sec 337A(d). The Commission may begin an investigation on its own.
- An Internet site dedicated to infringing activity is defined as a site that (1) uses a non-domestic domain name, (2) conducts business directed towards U.S. residents, and (3) has "limited purpose or use other than engaging in infringing activity" or the operator "primarily" uses the site to willfully infringe copyright, violate the DMCA's anti-circumvention provisions, or violate trademark.
- A non-domestic domain name is defined as a domain name that (1) uses a TLD issued and operated outside the U.S., (2) uses a registrar outside the U.S., and (3) the owner and operator of the site are located outside the U.S.
- This is a narrow definition that clearly targets operations outside the U.S. If the TLD registry, registrar, or operator are located in the U.S., then they are not a non-domestic domain name and not included in the definition of an Internet site dedicated to infringing activity.
- An operator can consent to jurisdiction in the U.S., and the Commission will terminate investigation. Sec. 337A(c)(5).
- The phrase limited purpose and primarily are ambiguous. The exact amount of infringing content that triggers the OPEN Act is a gray area that will include some non-infringing content and require judicial interpretation.
- There are three exclusions from the definition of an Internet site dedicated to infringing activity: (1) the website expeditiously removes or disables access to material that a rightsholder claims is infringing after the rightsholder sends the website owner notice, (2) a website is liable under 17 U.S.C. § 512, or (3) the website is distributing copies made without infringing copyright or trademark.
The notice requirement is not as clear as the DMCA.
Orders: The Commission can issue temporary, preliminary, or final cease and desist orders.
A temporary order can be issued against the site for a duration of 14 days and can be extended for a total maximum of 28 days with a showing of good cause. The standard for obtaining a temporary order is the same as the standard for a temporary restraining order under FRCP 65.
A preliminary order can be issued against the site within 30 days of notice of the start of an investigation. The standard for obtaining a temporary oder is the same as the standard for a preliminary injunction under FRCP 65. The time to make a determination on a preliminary order may be extended for a maximum of 60 days if there are complications in the investigation.
Expedited consideration is available upon a showing of "extraordinary circumstances."
Bond requirement: A temporary or preliminary order may be subject to a bond, at the Commission's discretion.
- The OPEN Act is not as protective as FRCP 65(c)--in a Federal civil case, FRCP requires security in an amount to properly compensate a wrongfully enjoined party. Cf. FRCP 65(c) with OPEN Act Sec. 337A(f)(2)(G).
The Commission's investigation and hearing is not subject to APA § 554's formal adjudication requirements, which means there are fewer formalities required for the hearing.
Orders against financial transaction providers or Internet advertising services.
If the complaint seeks an order against an financial transaction providers or Internet advertising service, they must be identified in the complaint and given notice. Sec. 337A(d)(3). A financial transaction providers or Internet advertising service may intervene in an investigation or an action to modify an order. If the financial transaction providers or Internet advertising service does not intervene, it may still later seek to modify, suspend, or vacate an order.
A financial transaction providers or Internet advertising service may be heard before the Commission issues, modifies, suspends, or vacates an order. Sec 337A(f)(5).
A financial transaction providers or Internet advertising service is immune from liability for taking action pursuant to an order, or declining service or terminating transactions with the site if they have a reasonable belief based on credible evidence that the site is an Internet site dedicated to infringing activity and the action is not inconsistent with the service's terms of service. Sec. 377A(j). This is the "vigilante provision" that may hurt free expression.
Referral to the president
If the Commission finds that a site is an Internet site dedicated to infringing activity, the Commission will send notice to the President of its determination and its order. If the President disapproves for policy reasons, the determination and order have no effect.
- Samuels, The OPEN Act: The Good, the Bad, and a Practice in Participatory Government (December 14, 2011)
- See Lamar Smith's Managers Amendment to SOPA at http://judiciary.house.gov/hearings/pdf/HR%203261%20Managers%20Amendment.pdf
- See IANA's Root Zone Database for information on TLDs