For more than a decade following the massive and contentious public protests against the Stop Online Piracy Act (SOPA), the prospect of implementing website-blocking mandates in the United States was a political third rail. Lawmakers from both sides of the aisle largely preferred to steer clear of a legislative battleground that had previously united tech companies, civil liberties advocates, and the public in fierce opposition.
That long-standing political taboo shattered when two distinct site-blocking bills were introduced in Congress within just ten days of each other, signaling a dramatic shift in Washington’s approach to combating digital copyright infringement.
The first of these legislative proposals is the American Copyright Protection Act (ACPA), introduced by Representative Darrell Issa. The ACPA seeks to empower federal courts to issue orders forcing internet service providers (ISPs), domain name system (DNS) resolvers, and virtual private networks (VPNs) to block domestic access to foreign pirate websites.
Less than two weeks later, a competing measure known as the DEFEND IP Act was introduced in the House by Representatives Zoe Lofgren and Ben Cline, with a companion effort led in the Senate by Senators Thom Tillis, Chris Coons, Marsha Blackburn, and Adam Schiff. This bipartisan initiative successfully merges Lofgren’s earlier Fair Access to Domain Protection Act (FADPA) and the Senate’s Block BEARD proposal into a unified piece of legislation.
At first glance, both legislative proposals share a foundational framework. Each bill relies on the federal court system to target foreign-based pirate websites exclusively, and both leave the specific technical implementation of blocking measures up to the individual service providers. However, a deeper examination reveals stark differences in the details, starting with the fundamental question of which digital intermediaries can be legally compelled to participate in blocking schemes.
Who Has to Block?
Under the framework of the ACPA, any broadband provider, DNS resolver, or VPN that maintains 100,000 or more monthly users or subscribers in the United States can be named as a defendant in a blocking order. Smaller service providers fall below this threshold and are exempt, as are critical internet infrastructure operators such as root nameservers and top-level domain registries.
The DEFEND IP Act approaches intermediary obligations through a different lens. It applies to broadband providers with at least 50,000 subscribers, a lower threshold that brings a significantly higher number of smaller local and regional ISPs into the scope of the law. However, when it comes to DNS resolvers, the DEFEND IP Act restricts its reach to public resolvers that generate more than $100 million in annual revenue.
Virtual private networks occupy the most contentious divide between the two bills. The DEFEND IP Act explicitly excludes services that exclusively provide VPN connections or similar encrypted routing, as well as DNS services that operate solely through encrypted protocols such as DNS over HTTPS (DoH).
This divergence makes VPNs the single clearest point of disagreement between the proposed U.S. blocking laws. A VPN provider boasting 100,000 American users could theoretically be hauled into court and ordered to block access to pirate destinations under Representative Issa’s bill, whereas Lofgren and Tillis’s version completely shields them from such obligations.
The scope of the ACPA has also evolved significantly during the legislative process. The initial discussion draft circulated the previous year exempted any internet service provider capturing one percent or less of the total U.S. broadband market, a carve-out that would have excluded nearly every provider with fewer than 1.2 million customers. The newly introduced text of the ACPA dropped that protective threshold, intentionally expanding its net to sweep in smaller ISPs and VPNs alike.
What is a Pirate Site?
Both legislative proposals rely on a similar three-factor legal test to determine whether a foreign website meets the threshold for blocking. A platform can be designated as a piracy site if it is primarily designed or provided to facilitate infringement, if it is marketed explicitly to promote infringement, or if it possesses little to no legitimate commercial utility. Despite this shared conceptual foundation, the statutory language describing the requirement varies notably between the two bills.
The DEFEND IP Act establishes a strict standard, requiring petitioners to demonstrate that the targeted foreign online location has "no commercially significant purpose or use" beyond copyright infringement. The ACPA adopts a slightly lower legal bar, applying to sites that possess "only limited commercially significant purpose or use" other than providing access to unauthorized, infringing material.
A second, more subtle distinction lies in the phrasing of what types of activities the targeted sites actually perform. The ACPA explicitly targets sites that provide access to pirated material, language that broadly covers linking and indexing directories as well as direct file hosts. Conversely, the DEFEND IP Act refers more narrowly to sites designed for the purpose of violating exclusive rights, which critics argue is less explicit when addressing third-party indexing sites that merely link to content hosted elsewhere.
Both bills also incorporate mechanisms that allow rightsholders to take legal action preemptively, before any actual infringement has taken place. The ACPA covers site operators who are determined to be about to violate a right, rather than solely those actively engaged in infringement at the moment of filing. The DEFEND IP Act introduces a similar mechanism tailored specifically for live events, allowing platforms to be targeted when an upcoming transmission is anticipated to infringe copyrights. Furthermore, it permits federal courts to issue these designations ex parte, meaning they can act without hearing from the foreign site operator first.
The Liability Shield
Perhaps the most significant policy debate dividing the two bills centers not on how blocking is executed, but on the legal liability of internet service providers and other intermediaries after a site has officially been designated as a pirate destination.
The ACPA includes a broad and comprehensive liability shield designed to protect every service provider falling under the bill’s purview, regardless of whether a specific provider was actually named in a blocking order or participated in enforcement. Under this provision, once a court declares a site to be a piracy hub, copyright holders are barred from winning monetary damages from any provider that continues to route traffic to the site, provided the provider is not actively conspiring with the site operators. This shield is slated to take effect the day the bill is signed into law, months ahead of the rest of the statutory framework.
This expansive protection represents a major expansion from earlier drafts. Representative Issa’s previous discussion draft offered a much narrower shield, protecting only providers explicitly named in an order, limiting protection solely to the specific rightsholder who obtained the injunction, and applying only to activities occurring after the order was issued. All of those restrictive limits were stripped away in the final introduced text.
The DEFEND IP Act rejects this retrospective broad immunity. Instead, it protects providers only when they implement an order in good faith, shielding them specifically from claims brought by the blocked site itself. The text explicitly states that nothing within the legislation alters the existing Digital Millennium Copyright Act (DMCA) safe harbors or long-standing principles of secondary liability.
This question of liability was the central stumbling block during congressional hearings on site blocking held over the previous year. During a Senate hearing, Senator Chris Coons acknowledged that negotiations had stalled primarily over whether internet providers deserved robust prospective and retrospective immunity in exchange for their compliance. Meanwhile, representatives for the Motion Picture Association argued that internet providers had rarely, if ever, been sued for enforcing blocking orders in foreign jurisdictions, rendering such sweeping liability shields entirely unnecessary. Sixteen months after those debates, the dynamic has resulted in one major bill offering a broad liability shield while its bipartisan counterpart omits it entirely.
Who Pays for Compliance?
Enforcing website-blocking orders demands significant technical and administrative resources, prompting both bills to include provisions allowing service providers to seek financial reimbursement from rightsholders. However, the scope and generosity of these cost-recovery mechanisms differ sharply.
Under the DEFEND IP Act, financial reimbursement remains entirely at the discretion of the presiding judge, and eligible expenses are strictly limited to direct compliance costs. Capital expenditures, general infrastructure upgrades, administrative overhead, and attorneys’ fees are explicitly excluded from recovery.
The ACPA establishes a much more favorable reimbursement framework for service providers. If a provider properly documents its expenses, the court is legally required to order reimbursement, retaining only the power to reduce the final award to prevent placing an undue financial burden on the copyright owner. Crucially, the ACPA permits providers to recover overhead costs directly tied to compliance, including apportioned salary expenses for specialized personnel who spend dedicated time implementing the specific blocking order.
Additionally, the ACPA requires rightsholders to post a financial bond for every site-blocking order they seek, creating a pool of funds designed to indemnify any provider that might be wrongfully enjoined. The DEFEND IP Act contains no such bond requirement. The two bills also diverge on how they handle mistaken overblocking. Under the ACPA, operators of legitimate websites that are erroneously blocked can seek up to $250,000 in compensation if the rightsholder is found responsible for the error. The DEFEND IP Act merely allows site operators to petition the court to correct an erroneous order, offering no financial compensation for damages incurred during the mistake.
Transparency and the Path Forward
Transparency has historically been a critical point of criticism for site-blocking systems worldwide, where the public often has no official, centralized way to verify which domains have been restricted. Both U.S. proposals attempt to address this transparency deficit, at least structurally.
The ACPA mandates that the U.S. Copyright Office maintain a comprehensive public registry of all active site-blocking orders. Furthermore, rightsholders are required to file formal notices of every legal action with the Copyright Office, which must then publish them in the Federal Register. The DEFEND IP Act similarly requires federal courts to notify the Register of Copyrights whenever a blocking order is issued, amended, or rescinded, with those notifications made publicly available on the agency’s website.
Critics and digital rights advocates have previously warned that publishing judicial orders without requiring explicit technical details—such as specific domain names and IP addresses—creates a "transparency illusion." Without these granular details in the public record, independent researchers and affected webmasters find it exceptionally difficult to audit blocks for overreach or error.
As both bills move through the legislative process, political realities loom large. Two of the primary congressional champions face imminent departures from Capitol Hill, as Representative Issa is set to retire at the end of the year and Senator Tillis’s term concludes in January. This creates a compressed timeline for lawmakers to decide whether to reconcile the two competing measures into a single unified bill or push one forward ahead of the closing congressional session.
The full legislative texts for both the American Copyright Protection Act (H.R. 10364) and the DEFEND IP Act (H.R. 10575) are publicly accessible via Congress.gov.
Leave a Reply