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  • Law, Policy -- and IT?

    Tracy Mitrano explores the intersection where higher education, the Internet and the world meet (and sometimes collide).

OPEN!
January 31, 2012 - 12:30pm

I like this acronym, and so far, I like this law. The Online Protection and Enforcement of Digital Trade (OPEN) is an appropriate response to the failed SOPA and Protect IP Acts. Where as the previously proposed laws threatened everything from free speech to balance of innovation and incentive in copyright law, OPEN is tailored to the obvious and egregious violations of copyright at the hands of international sites that take outrageous advantage of both content holders and consumers with no respect whatsoever of the rule of law, free market commerce or humanistic values.

The most impressive aspect of this law is its use of the International Trade Commission (ITC).  That there is a paucity of international law, or even the framework of such, to address these issues should be acknowledged as a stumbling block for content owners, treaties such as Berne among others notwithstanding.   While not perfect, this law, and this commission, provides promise to addressing this paucity.  This approach also creates a more level playing field for litigation that the "forum shopping" option held open in SOPA and Protect IP.

OPEN also incorporates due process.  No automatic shut-downs of sites or third party financial processors at the will of content owners, issues which were the most serious design flaws in the two previous laws.  The terms "over broad" and  "vague" one learns quickly in constitutional law, and had the previous laws passed almost certainly they would have been contested on those grounds.  OPEN does not provide content owners with the carte blanche that they would prefer to protect their copyrights, and that is why it is a law worthy of support, even and especially among those Internet companies that protested SOPA and Protect IP.

Perhaps the most important aspect of this new law, and its reliance on the ITC, is the recognition that a connected world must move beyond paralysis in international law in general.  May OPEN be the first concrete step towards much more thought, consideration and debate around the globe about how to address such matters as international jurisdiction and substantive law in a global community.   For observers of copyright in the digital era, it should surprise no one that it may become the standard bearer for the rule of law internationally, solid enforcement as a complement to human rights, opportunities for commerce and economic advancement, free speech, innovation and incentive for all.

 

 

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