Site Blocking Returns: Is it the New SOPA/PIPA?

In January 2012, the internet was in an uproar. Two bills, the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA), sparked major online protests, including on Reddit, Wikipedia and Google.
The bills aimed to implement site blocking in the United States. It would have required internet service providers to block access to copyright-infringing websites. However, fear of overreach and a significant amount of misinformation resulted in a public outcry that killed both bills.
Since then, a great deal has changed. In March 2019, the European Union passed its site-blocking measures. Though it received similar protests, they failed to have the desired effect. Of course, by then, the UK, Australia and other nations had already implemented site-blocking rules.
But even as the rest of the world moved on from the SOPA/PIPA protests, site-blocking remained taboo in the United States—that is, until April 2024.
That was when Motion Picture Association (MPA) CEO Charles Rivkin announced that his organization would join others in working with Congress to pass new site-blocking legislation. However, at the time, any new legislation seemed likely to be years away.
However, yesterday, Rep. Zoe Lofgren, a Democrat from California, introduced a new site-blocking bill to Congress. The Foreign Anti-Digital Piracy Act (FADPA) would allow rightsholders to obtain site-blocking orders.
But is the bill just a repeat of SOPA/PIPA? The answer is no. This bill is very different, both in terms of its content and the environment around it.
Understanding the Bill
The bill establishes a process for rightsholders to request that online service providers block or disable access to allegedly infringing websites.
The process starts with a petition to a U.S. district court. The petitioner must notify both the targeted website and the service providers. The court then reviews the order and determines if it meets the criteria for a preliminary order.
After the preliminary order is issued, the site operator or the service providers can contest it. If the order is granted, it can remain in effect for up to 12 months unless the court extends it.
The bill applies to all broadband providers with over 100,000 subscribers and public domain name service providers with over $100 million in revenue. For websites, it only targets sites not based in the U.S. whose primary focus is copyright infringement. However, site blocking cannot interfere with users’ access to virtual private network (VPN) services.
The bill says little else. It doesn’t establish rules for what technologies service providers should use to block websites. It just calls on them to make a good-faith effort to comply. The bill also doesn’t impact bars, restaurants, coffee shops, and other places that offer Wi-Fi to customers.
But is it enough to give the bill a chance? That’s difficult to say.
The Key Differences
According to Rep. Lofgren, she opposed the SOPA and PIPA bills in 2012. As such, she says she crafted this one to be more narrowly focused and contain greater protections against abuse.
However, both SOPA and PIPA had court oversight, and neither was likely to impact mixed-use sites. Even Wikipedia acknowledged that they would not be directly affected. FADPA does spell out these issues more directly, leaving less of the bill open to (mis)interpretation.
The addition of domain name service (DNS) providers is one new component that will likely strengthen the bill’s impact.
The DNS system translates domains (like plagiarismtoday.com) to IP addresses that your computer can access. With SOPA and PIPA, ISPs would have been ordered to remove pirate site entries from their DNS servers. However, nothing would have stopped customers from using third-party DNS providers, like Google or Cloudflare, to bypass those blocks.
Including DNS providers not only makes the blocks more difficult to circumvent, but it may also have international implications. As noted by TorrentFreak, these services are offered globally but are based in the United States.
While these are relatively significant changes to the law, it’s pretty clear that the most significant change is the climate around it.
A Different Climate
Reading the bill and the material and the material Rep. Lofgren has shared with it, one thing is clear: she doesn’t want a repeat of 2012.
To that end, the bill is more narrowly written and carves exceptions for VPNs, mixed-use sites and restaurants offering Wi-Fi. Protestors raised each of these concerns in January 2012.
To be clear, it was unlikely that SOPA/PIPA would have impacted those things. Many of those arguments were dubious if not made in bad faith. Still, this bill attempts to prevent those kinds of arguments.
However, the most significant difference between SOPA/PIPA and FADPA is, most likely, the thirteen years between them.
In January 2012, the United States was the first to propose such legislation. There was a great deal of uncertainty about how this kind of legislation would work. Though way overblown, fears of it destroying the internet felt at least plausible.
Today, some 60 nations have some form of site blocking. No one claims that it destroyed the internet in the UK or EU. Though the effectiveness of such measures remains a source of constant debate, they’ve not had the dire outcomes predicted in 2012.
We saw that firsthand in 2019. As the EU made progress in passing its site-blocking law, opponents made many of the same arguments, but were ignored Not only had none of the dire predictions come to pass, but none of the architects of SOPA/PIPA faced any political repercussions.
None of this is to say that FADPA is likely to pass. The odds of any particular piece of legislature becoming law are very low. For example, the idea for a copyright small claims court was first floated in 2006. It was finally passed in December 2020 as part of the Copyright Alternative in Small-Claims Enforcement (CASE) Act.
However, it does mean that at least one legislator is willing to try it and see where the path leads.
Bottom Line
Ultimately, I feel the same way about FADPA that I did SOPA/PIPA: Ambivalent.
None of these laws are really going to help me or the creators I work with. These bills are plainly intended for larger rightsholders who can afford the legal overhead.
To be clear, I was angry at the bad-faith arguments made against it, but I don’t see any of these bills drastically changing the landscape for most creators. However, the last 13 years have exposed those arguments for the hyperbole they were. Coupled with a more carefully crafted law, it’s clear that FADPA at least stands a better chance.
It’s also important to note that, according to Rep. Lofgren, she crafted this bill after lengthy consultations with rightsholders and the tech industry. If the tech industry does come out to support this, even in a small way, it could make a significant difference.
In the end, the odds are long for this particular bill. But it probably won’t be the last time this is proposed. The taboo around site blocking has been lifted and it isn’t likely to come back.
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