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Appendix
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C. Online Protection and Enforcement of Digital Trade Act (“OPEN Act” (S. 2029)):
1. Substantive Provisions of the OPEN Act
As currently proposed in the Senate, 54 the OPEN Act (S. 2029) seeks to modify the Tariff Act of
1930 (19 U.S.C. § 1304) by vesting jurisdiction to hear and decide matters of foreign online piracy
or counterfeiting in the International Trade Commission (ITC). It adds Section 337A to the Act,
entitled “Unfair Trade Practices Relating to Infringement of Copyrights and Trademarks by Certain
Internet Sites.”
This bill expressly excludes U.S.-based sites from enforcement efforts, and defines “infringing
activity” to include only violations of 17 U.S.C. §§ 506, 1201 and 15 U.S.C. § 1116(d).
Under the bill, a U.S. rightsholder who believes that a particular web site violates its rights may
submit a complaint to the ITC, which will launch an ITC investigation into the operation of the site.
The rightsholder would provide notice of this complaint to the registrant of the domain name. If the
ITC determines that the site indeed qualifies as an “Internet site dedicated to infringing activities,” it
may generate a cease and desist order directing that the site stop its infringing activities.
A cease and desist order under this bill could then be served on financial transaction providers or
Internet advertising services. In a dramatic difference between this bill and the PROTECT IP Act or
SOPA, search engines and domain name registrars are not covered under this bill.
The ITC will also submit its determination, the record upon which it is based, and any cease and
desist order that it generates to the President, who may “disapprove” of the determination and cease
and desist order “for policy reasons,” causing the order to be terminated.
By definition, this brief excludes from prosecution those web sites that “ha[ve] a practice of
expeditiously removing, or disabling access to, material that is claimed to be infringing activity.”
The bill also makes provisions for temporary and preliminary cease and desist orders , payment of a
bond to “discourage the filing of frivolous petitions.” Similar to prior bills, the OPEN Act provides
immunity to intermediaries who have acted in compliance with this bill.
In addition, this bill allows Customs and Border Patrol to share information with the holder of a
trademark in order to determine whether the goods were imported in violation of 18 U.S.C. § 1905.
Further complicating the analysis is the fact that the OPEN Act has been referred to different the
Senate Finance Committee, instead of the Judiciary Committee as the PROTECT IP Act had been.
As a result, the public debate may be somewhat bifurcated due to the different considerations
required by each committee.
Like the PROTECT IP Act and SOPA, this bill mandates that regulations be promulgated to establish
procedures and to provide guidance to the rightsholder, and that a study be performed of the
enforcement and effectiveness of this provision. The study must also include an analysis of any
modifications that are required to the bill to account for new technology within two years of
enactment of this bill. Unlike the PROTECT IP Act and SOPA, this bill mandates that the study
must be conducted by the President.
2. Public Comment in Support/Opposed to the OPEN Act
a) Statements in Support
The OPEN Act currently has a significant number of bipartisan supporters, particularly in the House
of Representatives following the January 18 protests. 55 Google, Twitter and Facebook have all
made public statements in support of the OPEN Act. 56