Seattle Trademark Lawyer

Wikipedia “went dark” Jan. 18 to protest PIPA and SOPA,
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Last week, Congress went from PIPA and SOPA to OPEN.

These are the acronyms for the federal bills aimed at curbing the sale of counterfeit goods through foreign Web sites.

It was a remarkable change. Congress had broadly supported the Senate’s Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PIPA or PROTECT-IPI) and the House’s similar Stop Online Piracy Act (SOPA). Indeed, the Senate was scheduled to vote on PIPA on Jan. 20.

But Google, Wikipedia, and other online providers fought back. They argued the bills’ authorizing the Justice Department to order search engine providers to remove foreign Web sites that sold counterfeit goods from search engine results — rendering them invisible for practical purposes — constituted censorship, turned search engine providers into the Internet police, and unfairly threatened them with liability if they did not comply.

So on Jan. 18, they launched a coordinated campaign against the bills. Wikipedia, most dramatically, “went dark” by making its content inaccessible to illustrate what would happen to a violating site if the bills passed. Google and others implored visitors to oppose the legislation.

That same day, both the House and Senate introduced a compromise bill, the Online Protection and Enforcement of Digital Trade Act (OPEN). The new bill moves enforcement authority to the International Trade Commission, directs compliance efforts at payment processors and advertisers doing business with foreign Web sites that are “primarily” and “willfully” infringing the trademarks and copyrights of U.S. owners, and gives the site owners an opportunity to be heard. It also excepts Web sites that follow reasonable notice-and-takedown policies when IP owners complain about infringing content.

And, voila, congressional support for PIPA and SOPA seemingly evaporated. Even some of the bills’ co-sponsors withdrew their names and said they would oppose the measures if put to a vote.

It’s remarkable how quickly it happened. Not to mention how PIPA and SOPA instantly became cocktail party fodder — and not just with intellectual property lawyers.

The text of OPEN is accessible here; Wikipedia treatment here. At first blush, I’m in favor of it. Some parts of our economy are getting hammered by counterfeiters. Our enforcement tools are expensive and cumbersome. If a counterfeiter, its Web site host, and its domain name registrars are all located in Foreign Country X, a rational counterfeiter may very well take his chances with a U.S. court whose power only extends to U.S. borders. OPEN seems to address that problem, and isn’t as heavy-handed as PIPA and SOPA.

Until someone convinces me otherwise, I think it’s a big improvement over the status quo.