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The imminent withdrawal of the court order provision (Section 3) from the Senate version - called PROTECT-IP or PIPA - of this year's round of anti-piracy legislation, will very likely doom any chance of such legislation emerging from Congress this year. Although SOPA, the House version, may yet pass with its version of the court order provision intact, any single bill that passes both houses must be a reconciled version of SOPA and PIPA. With Sen. Patrick Leahy (D - Vt.), one of PIPA's co-authors, now advocating further study in the next congressional term, any move by the House this term will largely be for show.

As we begin to emerge from this round of the anti-piracy fight, none of us are particularly any smarter or wiser or more prepared for the next round than we were before. Not only do we lack a better idea of what a solution may be for the future, all of us have, in one way or another, succeeded in misdiagnosing the problem.

The U.S. International Trade Commission would be the court of first instance for disputes brought by parties claiming that a Web site hosted offshore is trafficking in its intellectual property, in a draft of a bi-partisan bill released today by Sen. Ron Wyden (D - Ore.) and Rep. Darrell Issa (R - Calif.). The Online Protection and Enforcement of Digital Trade bill (whose acronym is somehow "OPEN") is being offered as an alternative to the PROTECT-IP anti-piracy legislation which passed the Senate Judiciary Committee last May, but which has yet to come to a vote of the full Senate. The bill's House counterpart, the Stop Online Piracy Act (SOPA), is currently being debated by representatives.

USITC is already the principal court for resolving intellectual property disputes between American and foreign companies, so certainly no one yet can fault the bill lack of precedent.