For more than a decade after the SOPA protests, site blocking was a subject American lawmakers preferred to leave alone. That ended last month, when two blocking bills were introduced in Congress within ten days of each other.
The first is the American Copyright Protection Act, H.R. 10364, introduced by Rep. Darrell Issa. It would allow federal courts to order internet service providers, DNS resolvers and VPNs to block foreign pirate sites.
The second is the DEFEND IP Act, H.R. 10575, introduced by Reps. Zoe Lofgren and Ben Cline in the House, with Senators Thom Tillis, Chris Coons, Marsha Blackburn and Adam Schiff leading in the Senate. It merges Lofgren's FADPA with the Senate's Block BEARD proposal into a single bill.
At first glance they are close relatives. Both route the process through the federal courts, both target foreign sites only, and both leave the technical means of blocking to the providers.
The first real difference is who can be ordered to act. Under the ACPA, any broadband provider, DNS resolver or VPN with 100,000 or more monthly users or subscribers in the United States can be named in a blocking order. Smaller services are exempt, as are root nameserver operators and top-level domain registries.
The DEFEND IP Act draws its lines elsewhere. It covers broadband providers with at least 50,000 subscribers, which sweeps in more small ISPs, but it reaches DNS resolvers only where they are public and have more than $100 million in annual revenue.
VPNs it leaves out altogether, excluding services that exclusively provide VPN connections or similar encrypted routing, along with DNS services that operate only through encrypted protocols such as DNS over HTTPS. A VPN with 100,000 American users could be ordered to block under Issa's bill and would not be touched by Lofgren's.
The ACPA has broadened as it has travelled. Its discussion draft exempted any ISP with 1 per cent or less of the US broadband market, which excluded essentially every provider with fewer than 1.2 million customers. The introduced version drops that exemption, bringing in smaller ISPs and VPNs.
Both bills then apply a three-factor test to decide whether a foreign site can be blocked at all. A site qualifies if it is primarily designed for infringement, if it is marketed to promote infringement, or if it has little legitimate use.
It is the third factor where the texts separate. The DEFEND IP Act requires that a site have “no commercially significant purpose or use” beyond infringement. The ACPA settles for a site that has “only limited commercially significant purpose or use” beyond providing access to infringing material. TorrentFreak notes that this is a lower bar.
That is the heart of it, and it is worth saying plainly. After the hearings, the tables, the subscriber counts and the revenue floors, the operative distinction between the two bills is the difference between “no” and “only limited”.
“No” is a quantity, and a checkable one. A site either has a commercially significant lawful use or it does not, and a single example settles it. “Only limited” is not a quantity. It is a comparison with the other side of the comparison left blank.
Follow it through. Under the ACPA a site with one lawful use is limited. A site with two is presumably also limited. Somewhere between two and all of them the site stops being limited, and neither bill, nor the draft, nor the merger of the two Senate proposals, says where.
The Department of Unnecessary Research has offered to count. It reports that the exercise requires two things that do not exist: a list of every commercially significant purpose a website may have, and a number above which a quantity of them ceases to be limited.
Everything else about the two bills is measurable. One covers providers above 100,000 users, the other above 50,000; one sets a $100 million revenue floor for DNS resolvers, the other does not; one names VPNs, the other excludes them. Those are arguments that can be had with a spreadsheet.
Congress will choose one of the two, and in doing so will decide how much lawfulness a website is allowed before it counts as a pirate. The options currently on the table are “none” and “not much”.