Lawmakers Introduce Site-Blocking Legislation To Curb Foreign-Digital Piracy

House and Senate lawmakers are again turning their attention to major anti-piracy legislation, introducing a bill in which content owners can seek a court order to require that internet providers prevent access to foreign digital piracy sites.

The Deterring Extraterritorial Foreign Exploitation of Networks Damaging Intellectual Property, or DEFEND IP Act, was introduced by lawmakers of both parties in Congress on Thursday. Key sponsors include Rep. Zoe Lofgren (D-CA) and Rep. Ben Cline (R-VA) in the House, and Sen. Thom Tillis (R-NC), Sen. Chris Coons (D-DE), Sen. Marsha Blackburn (R-TN) and Sen. Adam Schiff in the Senate.

Read the anti-piracy legislation.

The legislation would leave it to a judge to decide whether a a site should be designated as one dedicated to foreign digital piracy, with such an order subject to renewal after 360 days. The bill defines such as site as one that has “no commercially significant purpose or use other than committing a violation of copyright.” The bill also applies to transmission of live events from foreign locations that violate copyright.

After that designation, content owners could then seek a further order to prevent, or block, access to the site. Per the legislation, the order would “direct service providers to take reasonable measures to prevent users in the United States from using the system or network of those service providers to access the foreign digital piracy site.” The bill sets out a series of criteria, including that such measures would not interfere with access to legal content at other online locations, and that it would be “technically feasible and effective.” Those seeking such orders would have to show that they are “likely to suffer irreparable harm” from the piracy.

It’s been nearly 15 years since the entertainment industry sought passage of a previous effort to curb access to online piracy, with the Stop Online Piracy Act, or SOPA. That generated a backlash, with Google and other tech giants opposed, and Wikipedia and others staging a daylong “blackout.” The bill was sidelined, and left lawmakers shellshocked at the scale of the outcry.

For years since then, with many on Capitol Hill skittish, the entertainment industry instead set its sites on voluntary commitments from those in the internet ecosystem.

Circumstances have changed. Since then, tech has seen its own backlash against it, albeit little significant legislation has passed Congress. Supporters of site-blocking measures, meanwhile, have pointed to its use in almost 60 countries.

Backers of the DEFEND IP Act noted that the bill differs from past legislation. It does not mandate specific technical measures for preventing access, leaving it up to internet providers to take “reasonable measures.” The bill also contains legal immunity for ISPs, and applies to large-scale foreign sites.

Still, after the DEFEND IP Act was introduced, USTelecom, representing broadband providers, expressed its opposition.

A spokesperson said that the legislation “would impose substantial new responsibilities on broadband providers without adequately addressing the legal and operational risks they create, including threats to lawful content online. This is particularly troubling given the Supreme Court’s unanimous decision in Cox v Sony this year that rejected holding an ISP broadly liable for copyright infringement occurring over its network.”

In Cox vs. Sony, the Supreme Court ruled in March that an ISPs was not liable “for merely providing a service to the general public with knowledge that it will be used by some to infringe copyrights.”

Among other things, USTelecom argued that piracy sites can still put up “mirror sites” and users can turn to VPNs. They also expressed concerns over the live event provision, arguing that it is based on “predicted infringement.”

Yet after years of calls for tech and ISPs to take a greater responsibility to curb infringement, the legislation would be a new tool for studios, producers and other content creators to curb piracy.

In a statement, Lofgren said that foreign piracy operations “exploit a loophole in our law, hurting workers and businesses in California and across the country while putting consumers at risk.” She called the bill a “smart, targeted approach to crack down on foreign piracy while protecting Americans’ free speech and access to a free and open internet.”

Tillis said, “Foreign piracy continues to threaten American creators, putting well-paying jobs at risk, while exposing consumers to malware, identity theft, and other serious online harms.” He called the bill “a targeted, commonsense tool to shut down these foreign, criminal operations at the source while protecting lawful speech and due process.”