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Chapter 4
Evoking by far the most intense criticisms was the provision authorizing the Attorney General to
maintain a public list of websites that the Department of Justice determines “upon information and
reasonable belief” to be dedicated to infringing activities. Critics derided this provision as a
“Blacklist.”
The uproar over DNS blocking derived primarily from two concerns. On the one hand, free speech
advocates were concerned that DNS blocking would inevitably result in the censorship of noninfringing
content. In addition, human rights groups expressed geopolitical concerns, telling
Congress that PIPA would lend cover to censorship regimes like China and Iran by betraying
America’s fight for Internet freedom and expression worldwide. From Reddit to the New York
Times, the blocking provisions were likened to the “Great Firewall of China,” a euphemism for
China’s domestic Internet firewall designed to censor websites, and suppress perceived subversive
Internet content in that country.
On the other hand, several engineers who were key designers of the early Internet aired concerns
that DNS blocking would have destabilizing consequences to the web’s underlying architecture. In
May 2011 this group published a white paper that was highly critical of the DNS blocking provisions
in PIPA, arguing that filters imposed by the bill would be easily evaded, while the presence of
a single Predatory Foreign Website on a shared server could disrupt Internet service for every subdomain,
blocking access to infringing and non-infringing sites alike. Moreover, the paper stated
that “site redirection envisioned in the [act] is inconsistent with domain name system security
extensions,” resulting in potential security risks, and destabilizing consequences. Proponents of
the bill did weigh in to rebut such criticisms, however. 75
By the time the OPEN Act was introduced, opposition and support was entrenched along the
familiar lines drawn and redrawn with each legislative permutation. Those opposed to the bill, such
as the Motion Picture Association of America (MPAA), did not believe that the OPEN Act went far
enough to protect U.S. intellectual property rights. In a formal response the MPAA derided the shift
in forum to the ITC and the lack of technical means to block access Predatory Foreign Websites
from U.S. Internet users. It also said that the legislation would lead to a costly and unnecessary
expansion of government bureaucracy. 76
For the very same reasons opponents criticized the OPEN Act, supporters embraced what they
perceived as a balance of the interests between the legitimate concerns of intellectual property
rightsholders and Internet openness and freedom. The Library Copyright Alliance applauded the
OPEN Act for co-opting a “follow-the-money approach” without compromising the security of the
Internet or changing domestic laws. 77 Even major Internet companies, AOL, eBay, Facebook,
Google, LinkedIn, Mozilla and Twitter lent their support to the Act by issuing a joint letter to
Representative Issa and Senator Wyden. 78
While the shift to the ITC was a well-intentioned attempt to address censorship concerns, it was
likely the OPEN Act’s undoing. The ITC was criticized by the RIAA, the Copyright Alliance, and
others for moving slowly, even on important cases such as the Apple-Research in Motion case that
took 33 months, and RIM v. Kodak, which had been filed in January of 2010 and was not ruled on
until 31 months later, in July of 2012. 79
Even tacit supporters of the Act, such as Professor Eric Goldman of Santa Clara University Law
School, believed that the administrative agency was an “odd” choice to conduct investigations
against Predatory Foreign Websites. 80 The ITC has limited expertise, if any, regarding online
counterfeiting and piracy, whereas federal courts have been dealing with such matters for decades.
Moreover, as an administrative agency, and not a federal court, there are substantial procedural
differences that could lead to important substantive differences. 81 For example, the ITC is not
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