New Bill Aims to Block Foreign Pirate Sites in the U.S.

Pirate site blocking orders are a step closer to becoming reality in the United States after Rep. Zoe Lofgren introduced the Foreign Anti-Digital Piracy Act earlier today. Should it become law, FAPDA would allow rightsholders to obtain site blocking orders targeted at verified pirate sites, presumably run by foreign operators. The blocking orders would apply to both ISPs and DNS resolvers. The latter is a novelty.

congressFor a long time, pirate site blocking was regarded as a topic most U.S. politicians would rather avoid.

This lingering remnant of the SOPA debacle drove copyright holders to focus on the introduction of blocking efforts in other countries instead, mostly successfully.

Those challenging times are now more than a decade old and momentum is shifting. Today, Representative Zoe Lofgren (D-CA) introduced the Foreign Anti-Digital Piracy Act (FADPA), which paves the way for blocking injunctions targeting foreign operated pirate sites, being implemented on home soil.

A ‘New and Improved’ Pirate Site Blocking Bill

If approved, FADPA would allow copyright holders to obtain court orders requiring large Internet service providers (ISPs) and DNS resolvers to block access to pirate sites. The bill would amend existing copyright law to focus specifically on ‘foreign websites’ that are ‘primarily designed’ for copyright infringement.

The inclusion of DNS resolvers is significant. Major tech companies such as Google and Cloudflare offer DNS services internationally, raising the possibility of blocking orders having an effect worldwide. DNS providers with less than $100 million in annual revenue are excluded.

While site blocking is claimed to exist in more than 60 countries, DNS resolvers are typically not included in site blocking laws and regulations. These services have been targeted with blocking requests before but it’s certainly not standard.

Foreign Anti-Digital Piracy Act

FADPA Foreign Anti-Digital Piracy Act
Petition, Review, Block…

Every blocking order must go through a U.S. court, supported by clear evidence of copyright infringement, due process, and judicial oversight to prevent censorship. Courts must also verify that any site-blocking order does not interfere with access to lawful material before issuing an order.

In practice, a blocking request would go through a multistep process before it is issued.

1. Petition: A copyright owner or licensee files a petition in U.S. District Court seeking a preliminary order. The petition must identify the domain name and/or IP-address.

2. Notice: The petitioner must make reasonable efforts to notify both the operator of the foreign website and the service providers identified in the petition.

3. Court Review: The court reviews the petition to determine whether it meets the requirements for issuing a preliminary order, including a copyright infringement check. If the court finds the criteria have been met, a preliminary order follows.

4. Opportunity to Contest: The operator of the foreign website has 30 days to appear in court and contest the preliminary order.

5. Motion for Blocking Order: If the preliminary order is upheld, the petitioner can then move for a blocking order. Before issuing a blocking order, the court must determine that it will not interfere with access to non-infringing content, place a significant burden on service providers, or disserve the public interest.

6. Final Order: Once the court is satisfied that the blocking order meets the requirements, it will issue the final order, and service providers will be required to implement it within 15 days.
The bill requires all court orders to be accessible to the public, immediately after they are issued. The proposal does not prescribe any specific blocking measures, however, leaving room for service providers to determine the least intrusive methods to comply.

Praise and Critique

Rightsholders already have the option to request a blocking injunction under U.S. Copyright Law. However, these may trigger liability for the online service providers. FADPA clarifies that these are “no fault” injunctions, shielding ISPs, DNS providers, and other intermediaries from legal liability.

The bill was introduced after months of discussions and negotiations with stakeholders from the content and tech industries. Whether any specific agreement was reached is unclear, but Rep. Lofgren is pleased with the result.

“The Foreign Anti-Digital Piracy Act is a smart, targeted approach that focuses on safety and intellectual property, while simultaneously upholding due process, respecting free speech, and ensuring enforcement is narrowly focused on the actual problem at hand,” Lofgren says.

Interestingly, Lofgren was one of the lawmakers who fiercely opposed the SOPA site blocking proposal to protect the Open Internet. She sees the current bill as a proper and much needed alternative.

“Now – after working for over a year with the tech, film, and television industries – we’ve arrived at a proposal that has a remedy for copyright infringers located overseas that does not disrupt the free internet except for the infringers,” Lofgren notes.

MPA Chairman and CEO Charles Rivkin thanked Rep. Lofgren for her efforts to support the creative industry, describing the bill as an effective tool to combat offshore piracy in the United States.

Not everyone is equally enthusiastic. Consumer interest group Public Knowledge was quick to condemn the “censorious” site blocking proposal.

“Rather than attacking the problem at its source – bringing the people running overseas piracy websites to court – Congress and its allies in the entertainment industry has decided to build out a sweeping infrastructure for censorship,” says Public Knowledge’s Meredith Rose.

In the weeks and months ahead, we expect more commentary from stakeholders, including ISPs and major tech companies. While the public outrage of 13 years ago will be difficult to top, there will likely be heated discussions before FADPA goes up for a vote.