The U.S. Capitol. Photo Credit: Martin Falbisoner

With an eye on curbing “foreign digital piracy,” federal lawmakers have introduced the Defend IP Act, which would enable rightsholders to petition district courts for ISP-level site-blocking orders.

The 17-page bill, full title the Deterring Extraterritorial Foreign Exploitation of Networks Damaging Intellectual Property (Defend IP) Act, just recently arrived in the House as well as the Senate.

In the House, Reps. Zoe Lofgren (D-CA) and Ben Cline (R-VA) introduced the straightforward measure, with Senators Thom Tillis (R-NC), Chris Coons (D-DE), Marsha Blackburn (R-TN), and Adam Schiff (D-CA) behind the identical legislation in the Senate.

As many know, said legislation’s surfaced following the Supreme Court’s Cox v. Sony decision, which, in a nutshell, dramatically narrowed the scope of secondary liability. In effect, the unanimous ruling put an end to the days of holding ISPs legally and financially accountable for allegedly failing to adequately address their subscribers’ repeat infringement.

Meanwhile, it’s hardly a secret that plenty of the involved sites are set up in foreign jurisdictions with less robust IP protections – nor is the entertainment industry unfamiliar with the challenges posed by litigating in the U.S. against alleged international piracy platforms.

One legal battle (and victory) later, the RIAA decommissioned Russia-based stream-ripper FLVTO.biz, for instance. But searching Google for “FLVTO” in the States turns up results riddled with copycat sites.

Similarly, on the streaming manipulation side, Michael Smith is facing possible prison time for masterminding a bot-powered fraud scheme. However, holding an American operating on U.S. soil accountable for an illicit enterprise is one thing; doing the same to shadowy culprits residing in far-flung nations is a different story.

Enter the Defend IP Act, which would apply to broadband providers (plus each DNS company with over $100 million in annual revenue) but not VPN providers or any “premises operator” (universities and cafes among them).

According to the legislation, copyright owners and exclusive licensees would gain the ability to petition district courts “to issue an order to designate a foreign online location as a foreign digital piracy site.”

In brief, it’d be up to the filing parties to determine that the platforms are based outside the States and to prove that they have “no commercially significant purpose or use other than committing a violation” of copyright law.

They’d also have to demonstrate that the “material or activity” at hand would likely cause them “to suffer irreparable harm.”

(The Defend IP Act further contains a blocking-order provision pertaining to foreign sites dealing in “the transmission of a live event” – with concerts, sports games, and award shows expressly mentioned.)

From there, the named foreign operator would have 20 days to appeal the petition; submitting to the jurisdiction of the district court and posting “a bond sufficient to ensure compliance with any judgment” would seemingly enable this operator to avoid being labeled a “foreign digital piracy site.”

In any event, if slapped with the label, foreign digital piracy sites would under the law face the distinct possibility of being subject to subsequent orders extending to service providers themselves.

The latter would be required 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.”

Now that they’ve seemingly put contributory liability headaches in the rearview, will ISPs abstain from opposing legislation creating additional obligations on their end?

Time will tell, but out of the gate, Re:Create executive director Brandon Butler, whose organization has found itself in agreement with ISPs in the Cox case and more, fired back against the bill.

“Forcing internet service providers to be copyright censors threatens user privacy and risks catastrophic collateral damage to the open web,” Butler said in a statement that was shared with DMN. “We’ve seen this play out in European countries, where site-blocking routinely knocks small businesses, government agencies, universities, and even convents offline.

“This fast-track site-blocking scheme bypasses due process, undermines the digital ecosystem, and invites abuse– disrupting small businesses, nonprofits and internet users across the globe,” he proceeded.

That clear-cut stance aside, the Defend IP Act would require courts to determine whether petitions “significantly burden” service providers, which could appeal orders and seek different orders requiring the filing parties to cough up “reasonable costs directly incurred” with enforcement.

It’d be up to these filing parties to “use reasonable, good-faith efforts to verify on an ongoing basis the accuracy of information provided in the petition regarding the foreign digital piracy site” and to submit updates as necessary.

And perhaps most importantly on this front, service providers subject to the orders would receive “immunity from liability” from claims levied by piracy sites, the sites’ users, customers, and the petitioners.

Finally, bearing in mind the above-noted copycat sites, the bill describes a process through which orders can be modified to cover related piracy platforms found to be operating “at a different domain name or Internet Protocol address” than initially identified.

With that, all eyes are on the legislative progress of the Defend IP Act, which follows a major site-blocking initiative in Latin America.

For now, Copyright Alliance CEO Keith Kupferschmid thanked the involved congressmembers and applauded the bill as putting “the U.S. in lock step with the rest of the globe.”

“In recent years, foreign-based digital piracy websites and services have come to represent some of the most egregious online infringers, causing massive harm to copyright owners and creators, and in turn harming the U.S. economy, employment, and trade, and endangering everyday citizens who access such websites,” Kupferschmid said in part.

“Because the operators of these piracy websites and services are located outside the jurisdiction of U.S. federal courts, copyright owners have not been able to stop them from infiltrating our country. This legislation would provide an invaluable tool to block criminal enterprises from accessing U.S. markets, and in turn protect creators, copyright owners, and the public,” he concluded.