The case for the bill, stated fairly
Rep. Darrell Issa (R-CA), chairman of the House Judiciary subcommittee that handles intellectual property and the internet, has introduced the American Copyright Protection Act, H.R. 10364. His office says it would let a copyright owner ask a federal court to determine that a foreign website is engaged in piracy. The owner could then petition the court to require internet service providers to take "commercially reasonable steps" to prevent access in the United States (Issa press release).
The problem it addresses is real. Offshore piracy operators ignore US courts, and a US judgment against them is worth little in practice. The Motion Picture Association's chief executive called the bill "an important step towards the U.S. joining its democratic peers" in using site blocking. Issa says the bill "establishes the tools to fight back, ensure due process, and safeguard legitimate online services." It also includes protections that earlier proposals lacked. The Judicial Conference would keep a roster of designated judges. The Copyright Office would publish a list of active orders. Third parties wrongly blocked could claim up to $250,000 in damages (TorrentFreak). The press release also promises that courts will weigh technical feasibility, unintended harm and the public interest.
Those are serious design choices. The question is whether they fix the structural problem.
Where the design breaks
The first ruling can be made against an empty room. According to the Electronic Frontier Foundation's reading of the bill text, the initial decision to label a site a "foreign piracy site" can be made without the operator appearing to defend itself. A court may appoint a special master to review the evidence, but that step is optional, and the special master has no authority to represent the accused site or its users (EFF). The adversarial process is the main protection against error in a speech-restricting order. Offering a chance to contest or modify the order afterward is a weaker substitute. By then the block is already in place, and the cost of undoing it falls on the party that was blocked.
The definition of a piracy site gets wider. EFF reports that the bill moves from sites with "no commercially significant purpose" beyond infringement to sites with "only limited commercially significant purpose." That change could bring in mixed-use platforms, such as forums, archives, file hosts and small services where infringement is one use among many. A threshold that loose, combined with default proceedings, invites overbroad designations. EFF cites Italy's system, which blocked 510 benign websites, as evidence that overblocking happens in practice.
VPNs and DNS resolvers are named explicitly. Earlier site-blocking proposals mostly aimed at access providers. This bill extends the duty to DNS providers and VPN services. A VPN's function is to carry traffic without inspecting its destination, so a duty to block specific domains pushes it toward logging or filtering, which is the opposite of what privacy-focused users want. Public Knowledge, quoted by TorrentFreak, warns that applying blocking orders to global DNS resolvers causes global blocks. A US court order could then cut off users in countries that never chose that outcome.
The statutory contrast
Under the DMCA, Congress deliberately limited what courts can demand of intermediaries. The Copyright Office describes Section 512 as creating safe harbors for four categories of provider: conduits, caching services, hosting providers, and search and linking tools. For hosting and search providers, injunctions are generally limited to disabling access to the infringing material and terminating an infringer's accounts, with such other relief as may be necessary to address infringement (Copyright Office, Section 512). The bargain was targeted notice-and-takedown of specific material in exchange for protection from liability. Site blocking replaces that with whole-domain orders aimed at entire sites. It also pulls in intermediaries that never hosted anything.
The bill is not alone. EFF describes a "raft of site-blocking bills" in this Congress, including the DEFEND IP Act, H.R. 10575. EFF argues that bill would incentivize "censorship, overblocking, and bad faith attempts to block access to a website," and notes that "there are no punishments for getting a website blocked in bad faith" (EFF). Issa's $250,000 compensation mechanism responds to that critique. But compensation after the fact puts the burden on the wrongly blocked party to find out about the order, prove harm and sue.
A proportionate alternative
A pro-innovation, pro-speech approach does not mean ignoring piracy. It means matching the remedy to the harm.
- Require an adversarial hearing before designation. Make a special master with authority to represent the accused site and affected users mandatory, not optional. Allow narrowly tailored interim relief only for clear-cut live-event piracy.
- Keep the definition narrow. Restore a "no commercially significant purpose" standard, so legitimate mixed-use services are not swept in.
- Exempt VPNs and neutral DNS resolvers. Keep obligations with access providers, which can comply without breaking tools that protect privacy and security.
- Make wrongful requests costly. Pair the compensation mechanism with fee-shifting and penalties against bad-faith requesters, so the cost of error does not fall only on the blocked.
- Prefer targeted tools. Under existing Section 512 notice-and-takedown, rights holders can already remove specific infringing material from hosts that operate in the US.
The bill is a more careful draft than past site-blocking proposals, and its authors clearly tried to answer earlier objections. But a process that can reach a verdict without the accused present, and that recruits VPNs and DNS providers to carry it out, still gives too much power to whoever files first. Congress should fix those features before moving the bill.