The draft of Rep. Darrell Issa's new U.S. pirate site blocking bill 'ACPA' is not without controversy. In public comments, opponents warn that the bill's legal framework risks overblocking, which can impact legitimate sites and services. And in a new twist, it appears the bill may come with a potential self-destruct button: a "sunsetting clause".

After a decade of focusing efforts overseas, the push for pirate site blocking has landed back on American shores.

There are currently two bills in the making; the Foreign Anti-Digital Piracy Act (FADPA) introduced by Representative Zoe Lofgren in February, and Representative Darrell Issa’s ‘American Copyright Protection Act’ (ACPA), which tackles the same issue from a different angle.

ACPA has yet to be formally introduced, but a draft of the framework was shared with stakeholders late May, with a request for input. While most of the back and forth takes place behind closed doors, the Re:Create Coalition and the Library Copyright Alliance (LCA) shared their critical comments publicly.

Overblocking Fears

The Library Copyright Alliance is pleased that libraries will be exempt from the blocking proposal, as they are not categorized as service providers. However, there are still concerns that the bill, as currently drafted, could lead to overblocking.

“LCA remains concerned that ACPA’s no-fault injunction structure could lead to over-blocking that could restrict access to information and thereby harm library users,” LCA writes.

The LCA notes that most cases will likely result in default judgments, as foreign sites typically unresponsive to actions filed in U.S. courts. In addition, service providers are unlikely to oppose orders on behalf of these unknown third parties.

“A service provider’s objective would be to implement the blocking in the most expedient manner possible, regardless of possible over-blocking,” LCA notes.

This predicted lack of scrutiny means that some sites may be classified as foreign piracy sites, even when they fail to meet the statutory definition.

Re:Create also raises overblocking concerns, focusing on the destabilizing impact the measures could have on the broader internet, suggesting that the potential fallout should be taken seriously.

“Advocates for site-blocking have downplayed the threat of overblocking and pooh-poohed the idea of ‘breaking the internet,’ saying that site-blocking can be achieved without threatening the integrity of the internet or lawful internet use. However, the latest research suggests site-blocking advocates may be trying to rush their idea into law before the facts can catch up to them.”

Re:Create cites an i2Coalition report which found that overblocking is widespread, especially when restrictions are applied to shared infrastructure like cloud platforms and CDNs. This is considered a potential threat to the internet’s architecture, the digital economy, and fundamental rights.

Solution in search of a problem?

Both groups mention overblocking in detail, but they also highlight separate issues. Re:Create, for example, notes that it’s not clear that site blocking is needed, questioning research that estimated a significant negative economic impact of online piracy.

“Site-blocking is a solution in search of a problem,” the group writes, citing a rebuttal from the Computer & Communications Industry Association’s Research Center, which points out several flaws in a key report that estimated $29.2 billion in lost U.S. revenues.

From Re:Create’s submission

This estimate is biased and based on flawed methodology, resulting in a multi-billion dollar figure that is “wildly out of step with previous studies that had concluded impacts from piracy were much smaller, potentially as low as zero,” Re:Create notes.

Move Site Blocking to the ITC

The LCA doesn’t mention the alleged damages, nor is it entirely against a site blocking bill. However, to prevent the risk of overblocking due to default judgments, it would like to shift the proposed forum from specific district judges to the International Trade Commission (ITC).

The library association argues that ITC judges already have expertise in intellectual property, and the ITC staff would represent the public interest, helping to prevent over-blocking.

“The staff’s ongoing involvement would help prevent over-blocking. Significantly, the ITC is equipped to order temporary relief, so it could act quickly to protect the interests of copyright owners,” LCA writes.

The idea of using the ITC as a forum to handle piracy related cases isn’t entirely new. In 2012, Rep. Issa’s proposed the OPEN Act, which would have tasked the Commission with stopping money flows to pirate sites. The bill was an alternative to SOPA and PIPA, but never passed.

A Sunsetting Clause?

The libraries also mention a novelty that, to our knowledge, has never been mentioned in public; a proposed sunsetting clause that is being considered by Rep. Issa.

“During one of the roundtables, Chairman Issa mentioned the possibility of the site-blocking legislation sunsetting after a set number of years. We favor sunsetting the legislation after five years,” LCA writes.

A sunsetting clause means that the law will automatically terminate or expire on a specific date unless Congress takes deliberate action to extend it. It is essentially a built-in expiration date for the bill, which ensures a thorough reevaluation of its impact and effectiveness in the future.

The ACPA framework is still in the discussion phase and the initial feedback shows that there may be room for improvement. This is especially true considering that these two responses are just the tip of the iceberg; there are likely others calling for more drastic enforcement too.

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A copy of the comments shared by Re:Create can be found here (pdf) and the Library Copyright Alliance’s submission can be found here (pdf).