For more than a decade following the massive and politically volatile protests against the Stop Online Piracy Act (SOPA), the concept of legislating website blocking was a legislative third rail that U.S. lawmakers overwhelmingly preferred to avoid. The political fallout from SOPA left a lasting impression on Capitol Hill, convincing many members of Congress that touching the infrastructure of the internet to combat copyright infringement was simply too risky.
That political calculus shifted dramatically when two distinct site-blocking bills were introduced in Congress within just ten days of each other. This sudden legislative flurry signals a major pivot in how Washington policymakers are approaching the persistent problem of global digital piracy, pitting different factions of lawmakers against one another as they attempt to forge a consensus on internet regulation.
The first of these two competing proposals, introduced by Representative Darrell Issa, is the American Copyright Protection Act (ACPA). Under the framework of the ACPA, federal courts would be granted the authority to order internet service providers, domain name system resolvers, and virtual private networks to block access to foreign pirate websites operating outside the jurisdiction of the United States.
Ten days later, a second legislative vehicle materialized with the introduction of the DEFEND IP Act. This bipartisan proposal was introduced in the House by Representatives Zoe Lofgren and Ben Cline, while Senators Thom Tillis, Chris Coons, Marsha Blackburn, and Adam Schiff led the charge in the upper chamber. The DEFEND IP Act is effectively a hybrid measure, merging Lofgren’s earlier Fair Access to Domain Protection Act (FADPA) and the Senate’s Block BEARD proposal into a single, unified bill.
At first glance, both legislative proposals share striking similarities. Each bill relies on the federal court system to target foreign-based pirate websites exclusively, and both deliberately leave the technical implementation of blocking measures up to the individual service providers rather than dictating a rigid government mandate. However, a deeper examination reveals substantial differences in the details, starting with the fundamental question of which internet intermediaries can be legally compelled to implement blocking orders.
Who Has to Block?
Under the current text of the ACPA, any broadband provider, DNS resolver, or virtual private network with 100,000 or more monthly users or subscribers in the United States can be formally named in a court-ordered blocking injunction. Smaller internet service providers falling below this threshold are exempt from the legislation, as are critical foundational infrastructure entities such as root nameservers and top-level domain registries.
The DEFEND IP Act approaches the question of intermediary scope through a different lens. It applies to broadband providers that maintain at least 50,000 subscribers, a lower threshold that effectively captures a greater number of smaller, regional internet providers than its counterpart. When it comes to DNS resolvers, however, the DEFEND IP Act establishes a much narrower net, stipulating that only public resolvers with more than $100 million in annual revenue qualify as covered entities.
Most notably, virtual private networks are entirely excluded from the DEFEND IP Act. The text of the bill explicitly carves out services that exclusively provide virtual private network connections or similar encrypted routing technologies, as well as DNS services that operate solely through encrypted protocols such as DNS over HTTPS (DoH).
This treatment of VPNs represents one of the clearest and most contentious policy divergences between the two site-blocking bills. Under Representative Issa’s ACPA, a VPN provider with 100,000 American users could theoretically be forced to block specified pirate domains, whereas the exact same provider would be completely shielded from such mandates under Representative Lofgren’s version.
Interestingly, the scope of the ACPA has expanded significantly since its initial conceptualization. During the preliminary discussion draft phase, the bill included a generous exemption for any ISP holding 1% or less of the total U.S. broadband market, a line that would have excluded virtually every provider with fewer than 1.2 million customers. The formally introduced version of the ACPA dropped that market share exemption entirely, casting a wider net that brings smaller regional ISPs and VPNs directly into the regulatory framework.
What is a Pirate Site?
Both legislative proposals utilize a three-factor legal test to determine whether a foreign online location qualifies as a pirate site eligible for a blocking order. A site can be targeted if it is primarily designed or provided for the purpose of copyright infringement, if it is marketed by its operators to promote infringement, or if it possesses little to no legitimate commercial use. Despite this shared foundation, the two bills describe these legal hurdles using distinct terminology.
The DEFEND IP Act establishes a strict standard, requiring petitioners to demonstrate that the accused site has “no commercially significant purpose or use” beyond facilitating copyright infringement. In contrast, the ACPA sets a slightly lower bar, applying to sites that possess “only limited commercially significant purpose or use” other than providing access to infringing content.
A second, more subtle distinction lies in the language describing the nature of the sites themselves. The ACPA explicitly targets sites that provide access to pirated material, phrasing that broadly encompasses linking directories, torrent indexers, and content hosts alike. Meanwhile, the DEFEND IP Act refers specifically to sites designed for the purpose of violating exclusive rights, which legal experts note is less explicit regarding sites that merely index or link to media hosted elsewhere.
Both bills also incorporate mechanisms that empower rightsholders to take legal action proactively, potentially before any actual infringement has even occurred. The ACPA covers operators who are found likely to violate a right in the future, extending beyond those actively engaged in infringement at the moment of filing. The DEFEND IP Act includes similar provisions tailored for live events, allowing rightsholders to target sites when an upcoming transmission is likely to infringe copyright, while additionally permitting courts to issue designations ex parte without hearing from the site operator beforehand.
The Liability Shield
Perhaps the most significant point of divergence between the two bills concerns the issue of legal liability. Specifically, the legislation addresses what happens to the copyright liability of internet service providers and other digital intermediaries after a particular destination has been officially declared a pirate site by a court.
The ACPA contains a broad, expansive liability shield that covers every service provider within the bill’s purview, regardless of whether a given provider was specifically named in an enforcement order. Once a federal court declares a site to be a pirate destination, copyright holders are barred from winning monetary damages from any covered provider for carrying or enabling traffic to that site, unless that provider actively conspired with the operators to infringe rights. This protection takes effect on the day the bill is signed into law, months ahead of the operational provisions.
This sweeping shield represents a major expansion from earlier drafts of Issa’s legislation, which initially protected only those providers explicitly named in an order, restricted immunity to the specific rightsholder who brought the suit, and applied solely to post-order activity. All of those limitations were stripped away in the final introduced text.
The DEFEND IP Act takes a fundamentally different path. It protects providers that implement a blocking order in good faith and shields them from liability claims originating from the blocked site itself, but it entirely omits a general piracy-damages shield. In fact, the text of the DEFEND IP Act explicitly specifies that nothing within the legislation alters existing Digital Millennium Copyright Act safe harbors or alters foundational principles of secondary copyright liability.
The question of immunity was a central battleground during congressional hearings on site-blocking legislation. During a Senate hearing, Senator Chris Coons noted that discussions had stalled for years over whether internet providers should receive prospective and retrospective immunity in exchange for their cooperation. While entertainment industry representatives like Karyn Temple of the Motion Picture Association argued that such shields were unnecessary because ISPs are rarely sued for complying with blocking regimes abroad, the resulting split between the two current bills demonstrates that the issue remains deeply divisive.
Who Pays and Transparency Measures
Implementing and maintaining site-blocking infrastructure incurs real financial costs for internet providers, and both bills attempt to address the question of cost reimbursement, though through very different mechanisms.
Under the DEFEND IP Act, financial reimbursement is left entirely to the discretion of the court, and providers are restricted to claiming direct compliance costs. Capital expenditures, infrastructure upgrades, overhead expenses, and attorney fees are explicitly excluded from recovery. The ACPA adopts a more generous approach for intermediaries, mandating that courts order reimbursement if a provider properly documents its expenses. Furthermore, the ACPA allows providers to recover a portion of overhead costs directly tied to compliance, including specialized personnel salaries attributable to implementing the specific order.
The ACPA also requires rightsholders to post a financial bond for every site-blocking order issued, providing a safety net to compensate intermediaries or legitimate operators who might be wrongfully enjoined. The DEFEND IP Act includes no such bonding requirement. Furthermore, the ACPA establishes a compensation mechanism allowing operators of legitimate sites mistakenly caught in a blocking net to claim up to $250,000 in damages if the error stemmed directly from the rightsholder. The DEFEND IP Act offers no monetary compensation for overblocking, restricting affected parties to seeking judicial correction of the order.
Transparency is another critical component addressed by both legislative packages, though critics have raised concerns about the practical utility of their proposed registries. The ACPA mandates that the U.S. Copyright Office maintain a public registry of all active blocking orders, supported by formal notices filed in the Federal Register. Similarly, the DEFEND IP Act requires federal courts to notify the Register of Copyrights whenever an injunction is issued, amended, or rescinded, with those updates published on the agency’s website.
However, legal analysts note that unless these public registries explicitly publish the specific domain names and IP addresses targeted by the injunctions, they risk creating a "transparency illusion" where the public is informed that blocking is occurring without possessing the necessary details to audit for overblocking or technical errors.
As these competing proposals move through the legislative process, time is of the essence. Several key congressional sponsors face impending departures from office, adding urgency to discussions over whether the two bills will eventually be merged into a unified compromise or whether one proposal will ultimately eclipse the other before the current congressional session draws to a close.
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