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Legislative History (COICA, PIPA and SOPA)
The following are common themes across various companies and industry in statements of support
of the OPEN Act. For instance, proponents argue that the vesting of initial authority in the ITC to
investigate claims is one of the bill’s strongest features. 57 For some parties, OPEN may provide more
expeditious relief than the court system. 58
Proponents of the bill also argue that the ITC is regarded as having a less stringent standard for
obtaining injunctive relief than the district courts, which must follow eBay Inc. v. MercExchange
LLC, and its heightened standard for granting injunctive relief. 59 As a result, obtaining relief
through an ITC proceeding could be arguably easier to obtain than through a federal court proceeding.
Moreover, the bill is structured to allow electronic submission of information and conduct
of hearings. 60 Finally, and perhaps most vocally argued, is that the OPEN Act does not impose any
obligation that might undermine the DNS system. 61
b) Statements in Opposition
Opponents of the OPEN Act argue that requiring all investigations and enforcement proceedings to
occur in front of the International Trade Commission (ITC) is inappropriate and that jurisdiction
should remain in the federal district courts. For example, the Copyright Alliance has argued, “the
proposal, which would utilize the International Trade Commission (ITC) as the venue for enforcing
copyrights and trademarks online against foreign based rogue websites, does not provide an
effective enforcement tool to artists and creators, and would actually create procedural obstacles
and excessive cost burdens that would make this an unworkable alternative for independent artists
and creators.” 62
Additional concerns articulated about the OPEN Act have been as follows:
• Orders issued by the ITC are subject to nullification by the President for policy grounds. 63
• Decisions by the ITC have no res judicata preclusive effect on parallel district court
proceedings, and indeed, may be appealed to federal courts under 19 U.S.C. § 1337(c). 64
• Before issuing an order under Section 337, the ITC is required to consider the effect of its
order on: public health and welfare; competitive conditions in the United States, the
production of like or directly competitive articles in the United States, and United States
consumers. 65 No comparable requirement exists in litigation in federal district courts.
• The definition of targeted sites has been significantly narrowed. 66 Exclusions under
337A(a)(8)(C) create ambiguity about what is and is not a site dedicated to infringing
activity. 67
• The ITC has not previously dealt with copyright and trademark infringement in the context
of the Internet, and may lack the resources and experience to do so effectively. 68 For
instance, a recent ITC report summarized the recent proceedings as follows:
During 2010, there were 108 active section 337 investigations and ancillary proceedings, 63 of
which were instituted in 2010. Of these 63, 56 were new section 337 investigations and seven were
new ancillary proceedings relating to previously concluded investigations. In all but two of the
new section 337 institutions in 2010, patent infringement was the only type of unfair act alleged.
The two exceptions were one investigation involving alleged copyright, trademark, and patent
infringement, and one investigation involving alleged misappropriation of trade secrets as well as
patent infringement. 69
• The ITC is located in Washington, DC, and proceedings may require rightsholders to send
counsel to in-person proceedings or hire counsel based in Washington to act on their behalf.
For many complainants, these factors may make ITC proceedings impractical. 70
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