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Government Remedies
3. SOPA
SOPA, 62 the House version of PIPA, included substantial modifications 63 but closely tracked the
language and substance of PIPA regarding government authority. The Attorney General retained the
authority to seek injunctive relief against a Predatory Foreign Website, as well as the authority to
serve court orders upon Internet service providers, payment processors, advertising services and
information location tools. 64 As with PIPA, private claimants would have only been authorized to
enjoin payment processors and advertising services. Although SOPA used different terminology to
refer to three of the four intermediaries, the change in terminology was not significant. 65
4. OPEN
OPEN 66 was introduced as a more palatable alternative to PIPA and SOPA. OPEN would have vested
the U.S. International Trade Commission (ITC), rather than U.S. District Courts, with the authority
to oversee investigations and disputes against Predatory Foreign Websites. According to Senator
Ron Wyden (D-Or), one of the drafters of the Act, “Putting the regulatory power in the hands of the
International Trade Commission—versus a diversity of magistrate judges not versed in Internet and
trade policy—[would] ensure a transparent process in which import policy is fairly and consistently
applied and all interests are taken into account.” 67
OPEN sought to improve upon PIPA and SOPA by narrowing its scope and opening up the bill to
commentary by the public. The subject matter was limited to concern predatory foreign websites
and did not include domestic websites as PIPA and SOPA had. 68 Although OPEN tracked some of
the same language of previous bills, such as allowing orders to be issued on intermediaries similar
to those in SOPA and PIPA, it avoided some of their more controversial provisions, such as DNS
blocking. Further, while PIPA and SOPA did not include sanctions for abuse of process and discovery,
the OPEN Act stated that the Commission could provide such sanctions. 69 However, unlike
PIPA and SOPA, only a private complainant would have been authorized to seek orders against
intermediaries, and only financial transaction providers and internet advertising services would
have been subject to service. 70 Determinations by the ITC were further limited by the authority of
the President to nullify them. 71 In addition, the OPEN Act called for cross-departmental cooperation
during an investigation by requiring the Commission to consult with and seek information and
advice from the Attorney General, the Secretary of State and other officers of trade and intellectual
property law enforcement. 72 Such collaboration was intended to maximize governmental resources
against online piracy and counterfeiting, and help quell concerns that the ITC may not be properly
versed in online piracy and counterfeiting.
D. Public Reaction
Reception to COICA, PIPA and SOPA followed a similar pattern: initially receiving support from
copyright and trademark industry leaders and coalitions; appearing on the fast-track to becoming
law; then dogged by criticisms from civil libertarians and Internet industry interests; and ultimately
abandoned. Often times, critics showed support for the bills’ intentions, but opposed their
passage because of what many perceived as threats to free speech and due process.
After receiving unanimous approval from the Senate Judiciary Committee in November 2010,
COICA was stalled by Senator Ron Wyden (D-OR) in the Senate. Wyden objected to COICA
because he believed that it would, “reduce the Internet’s ability to promote democracy, commerce
and free speech.” 73 Other opponents of the bill, including the Center for Democracy and Technology
(CDT), the Electronic Frontier Foundation (EFF), and a group of law professors from across the
United States, echoed similar sentiments in open letters to Congress, all keyed in on the same
policy: DNS blocking. 74
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