Senator Thom Tillis and Representative Zoe Lofgren have introduced a joint site-blocking bill, the DEFEND IP Act, less than two weeks after a competing proposal from Representative Darrell Issa.
Both bills would allow rightsholders to obtain court orders requiring internet service providers and large DNS resolvers to block foreign pirate sites. The crucial difference is that the unified bill explicitly leaves virtual private network providers out.
The DEFEND IP Act merges Lofgren's Foreign Anti-Digital Piracy Act and Tillis's Block BEARD draft into a single bicameral bill. Senators Chris Coons, Marsha Blackburn and Adam Schiff are co-sponsors of the Senate version, and Representative 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," Lofgren said in her announcement.
The Senate version, S. 5529, is now with the Judiciary Committee. The bill covers broadband providers with at least 50,000 subscribers and public DNS resolvers with more than $100 million in annual revenue, a threshold that would take in Google and Cloudflare.
VPN services are not on the list. 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". DNS resolvers get a comparable exemption, but only where they operate exclusively through encrypted protocols, which is a high bar.
The blocking process follows two steps. A federal court first classifies 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, though a court may issue an order without waiting. With the designation in hand, the rightsholder returns to the same judge for a blocking order, valid for a year and renewable.
The bill also covers live streaming events, including sport, allowing a court order where a transmission will likely infringe, which means a site can be flagged before a match begins. Unlike the rival bill, which offers up to $250,000 for sites blocked by mistake, DEFEND IP provides no compensation.
More than a dozen organisations backed it from the start, among them the MPA, the RIAA, the 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," said MPA chairman and chief executive Charles Rivkin.
Public Knowledge, which opposes both bills, sees one push rather than two. "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," the group said.
Time is short. Both bills expire when the current Congress ends in January, more than fourteen years after SOPA was shelved. Issa is retiring and Tillis is not seeking re-election, so neither will be present to reintroduce his proposal next year.
There is one provision on which this newspaper can already report a completed outcome, and it is the title.
DEFEND IP is an acronym for "Deterring Extraterritorial Foreign Exploitation of Networks Damaging Intellectual Property". Read forwards it is a description of policy. Read at the speed it was written, it is nine words chosen to produce eight letters that had already been decided.
The bill's own architecture is designate first, block later: the court names the thing before it does anything about it. The title is the only part of the legislation that has finished both steps. It was designated in September and defined immediately afterwards.
That leaves the phrase itself to be assessed against the test the bill supplies. A designation requires that the object be primarily designed for a purpose, have no commercially significant purpose other than that purpose, or be intentionally marketed as a destination for it.
"Deterring Extraterritorial Foreign Exploitation of Networks Damaging Intellectual Property" is primarily designed to spell DEFEND IP. It has no commercially significant purpose other than spelling DEFEND IP. It is intentionally marketed as a place where DEFEND IP can be found.
The Department of Unnecessary Research notes that the test requires only one of the three limbs to be satisfied, and that the title satisfies all three. It has written to the Judiciary Committee to ask which of the two competing bills should be used to block it.