The OPEN Act: significantly flawed, but more salvageable than SOPA/PROTECT-IP

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From time to time, we will be running posts from Eric Goldman's Technology & Marketing Law Blog. Sometimes they will look similar to other articles appearing on Ars; other posts will be more "bloggy" in nature. This is one of the latter.

Sen. Ron Wyden (D-OR) and Rep. Darrell Issa (R-CA) have released a draft of OPEN: Online Protection & Enforcement of Digital Trade Act, intended as an alternative to SOPA/PROTECT-IP. (See my prior posts opposing SOPA and linkwrapping the discussion.) Unlike SOPA's disgustingly blatant rent-seeking, which was such an over-the-top abuse of the legislative process that it did not (and could not) support a principled or even intelligent conversations about it, OPEN provides a useful starting point for a sensible conversation that could actually lead to acceptable compromises.

For that reason alone, I think Congress should immediately stop all work on SOPA/PROTECT-IP and redirect that energy towards vetting this proposal. Having said that, for reasons I'll explain in a moment, I continue to believe the assumptions underlying SOPA/PROTECT-IP and OPEN are misguided, meaning that forging a compromise from OPEN’s more sensible proposal may be tricky.

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