Last week, we reported that the American Copyright Protection Act (ACPA) puts virtual private networks on the list of intermediaries that could be ordered to block pirate sites.
This wasn’t the only bill in the works. As expected, there’s now competition from a unified bill, officially introduced by Senator Thom Tillis and Rep. Zoe Lofgren: the DEFEND IP Act.
Both lawmakers had already been working on similar legislation and the DEFEND IP Act merges Lofgren’s Foreign Anti-Digital Piracy Act (FADPA) and Tillis’s Block BEARD draft into a single bicameral bill.
While the bill’s title works on its own, it’s actually an acronym for “Deterring Extraterritorial Foreign Exploitation of Networks Damaging Intellectual Property.” Senators Chris Coons, Marsha Blackburn, and Adam Schiff are co-sponsors of the Senate bill, while Rep. Ben Cline co-leads the House effort.
“I am proud to work across the aisle on this smart, targeted approach to crack down on foreign piracy while protecting Americans’ free speech and access to a free and open internet,” Rep. Lofgren says in her announcement.
The Senate version of the bill, S. 5529, is now with the Judiciary Committee. Congress.gov has yet to publish the text, but Lofgren’s office has posted a copy of the House version of the bill, which allows us to take a closer look.
VPNs Are Exempt
Like Issa’s ACPA, the DEFEND IP Act allows copyright holders to obtain court orders that require intermediaries to block foreign pirate sites. The key difference is which intermediaries can be targeted.
The DEFEND IP Act covers broadband providers with at least 50,000 subscribers, as well as public DNS resolvers with more than $100 million in annual revenue. The latter would likely include Google and Cloudflare.
VPN services are not on the list, however. The bill’s definition of a service provider explicitly excludes “an entity that exclusively provides virtual private network services or similar service that encrypt and route user traffic through intermediary servers.”
This is different from the ACPA bill, where VPNs are included. The word “exclusively” leaves some room for interpretation, however. The bill doesn’t explain how the exemption applies to companies that offer a VPN alongside other services.
DNS resolvers get a similar exemption, but only if they provide their services “exclusively through encrypted DNS protocols,” such as DNS over HTTPS. This is a high bar and it likely means that major public DNS resolvers including Cloudflare and Google, which also handle unencrypted queries, would have to block on their encrypted services as well.
Designate First, Block Later
The blocking process itself follows the same two-step approach as Issa’s ACPA bill. The first step is for a federal court to classify a website as a “foreign digital piracy site.”
To qualify, the site must be primarily designed for piracy, have no commercially significant purpose other than piracy, or be intentionally marketed as a piracy destination. Operators have 20 days to respond, but the court doesn’t have to wait for them and can issue an ex-parte order when the requirements are met.
With the designation in hand, the rightsholder can return to the same judge and request a blocking order. The court then has to decide whether blocking is “technically feasible and effective” or whether there are less burdensome options available.
Blocking orders remain valid for a year and can be renewed. When a pirate site moves to a new domain or IP address, rightsholders can ask the court to update the order.
As with ACPA, the DEFEND IP Act also covers live streaming events, including sports. Rightsholders can request a court order when a live transmission “will likely violate” their rights, which means that a site can be flagged before the match starts.
Hollywood Applauds, Public Knowledge Objects
As with earlier proposals, service providers get several safeguards. Blocking orders can’t prescribe specific blocking techniques, providers are immune from liability when they comply in good faith, and they can ask rightsholders to cover part of the costs.
Websites that are blocked by mistake can ask the court to modify the order. However, unlike Issa’s bill, which offers up to $250,000 in compensation, the DEFEND IP Act has no payout for collateral damage.
The unified bill has broad industry support from the start, with more than a dozen organizations backing it, including the MPA, RIAA, Copyright Alliance, SAG-AFTRA, and the Directors Guild.
“By enacting this legislation, our country can deploy a highly effective tool to protect creators and consumers from overseas digital piracy, all while safeguarding free speech and preserving the open internet,” MPA Chairman and CEO Charles Rivkin says.
Public Knowledge, which also opposes Issa’s bill, sees it differently. The group views both site blocking proposals as part of the same push.
“For the second time in as many weeks, rightsholders have convinced Congress to build out an expansive infrastructure for censorship rather than go after the root of the problem: operators of overseas piracy websites,” Public Knowledge writes.
“Let us repeat: Applying blocking orders to global DNS resolvers causes global blocks,” the group adds.
More than fourteen years after SOPA was shelved, two site blocking bills are now competing for support in Congress.
Time is limited, however. Both bills expire when the current Congress ends in January. Rep. Issa is retiring and Senator Tillis is not seeking reelection, so neither will be around to reintroduce their proposals next year.
Whether either proposal will get further than SOPA did remains to be seen.
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A copy of the DEFEND IP Act, as published by Rep. Lofgren’s office, is available here (pdf).