The bill defines infringing activity as activity that current law already considers illegal, criminal in fact. While this targeted part of the definition is good news, its second part is not: unfortunately, like SOPA and PIPA, the OPEN Act defines DMCA circumvention as "infringing activity." This is troubling. Plaintiffs often misuse § 1201, the circumvention statute, in effors to prohibit competition and consumer choice without having to show any underlying copyright infringement. Consider for example Microsoft’s efforts to prohibit access to Xbox users for third-party memory cards. The OPEN Act would create new ways to prevent those types of innovations from being sold in the United States, or worse, would prohibit technologies that serve as important tools used in international human rights work. (Sec. 2(a)(4)).
Speaking of prohibiting sales in the U.S., the OPEN Act takes the novel approach of moving the dispute between rights-holders and allegedly infringing sites to the International Trade Commission (ITC) and out of federal courts. The ITC offers a procedure cheaper and more efficient than courts, which is good. The OPEN Act requires the ITC to investigate any complaint made by any third person, but fails to create an early process at the outset of the investigation for immediate dismissal of bogus complaints (the kind of complaints we already see way too often). While the OPEN Act’s proposed rulemaking could lead to early case disposal procedures, we would like to see those protections in the statutory language. (Sec. 2(c)(1)(B)).
https://www.eff.org/deeplinks/2011/12/open-act-good-bad-and-practice-participato...
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