Congress is taking another run at site-blocking, a deeply flawed concept that would undermine basic internet infrastructure. Rep. Darrell Issa (R-CA) has introduced the American Copyright Protection Act (ACPA), H.R. 10364, a bill that would give copyright owners a new legal tool to block Americans’ access to foreign websites accused of copyright infringement. 

The basic idea is all too familiar, and it’s still dangerous. A copyright owner first asks a court to label a foreign website a “foreign piracy site.” Once that happens, the copyright owner could seek orders requiring internet service providers, DNS providers, and—new and explicit in this bill—VPN providers to take “commercially reasonable steps” to stop their users in the United States from accessing those sites. The decision to label a website as a “foreign piracy site” can happen without the accused site even showing up in court to defend itself. 

ACPA Goes Further Than Other Site-Blocking Proposals 

In some ways, the ACPA is even worse than a site-blocking legislation introduced last year, the Foreign Anti-Digital Piracy Act (FADPA), which EFF also opposed. That bill at least excluded companies that provide only VPN services, as well as providers that offer DNS resolution exclusively through encrypted DNS protocols. The ACPA drops those protections. In fact, the bill explicitly includes VPNs among the service providers that can be ordered to block access to a website. 

The bill also broadens the definition of a “piracy site.” Last year’s site blocking bill covered sites with “no commercially significant purpose or use” other than infringement. ACPA changes that to sites with “only limited commercially significant purpose or use” beyond infringement. In other words, under ACPA, even a website with legitimate commerce going on could still be labeled a “foreign piracy site” and ultimately blocked for all Americans. 

Better Process Still Doesn’t Fix The Problem 

The ACPA includes some procedural protections, such as requiring service providers that could be subject to a blocking order to receive legal notice and an opportunity to respond. The bill also requires courts to consider the potential harm to other websites and internet users before ordering intermediaries to block websites. It further requires the copyright owner to post a bond, in an amount determined by the court, sufficient to cover the costs and damages incurred by any service provider found to have been wrongfully enjoined. The bill also provides a mechanism for operators or users of third-party online services affected by erroneous blocking to seek compensation after the fact in certain circumstances. Finally, a site operator can ask a court to rescind its designation as a “foreign piracy site.”

These safeguards are significant and positive changes, but they don’t solve the basic, and severe, due process problem. The initial decision to label a website a “foreign piracy site” can still be made without the site operator appearing to defend itself. The court can appoint a “special master,” which is an independent expert who helps the judge evaluate evidence, to review the copyright owner’s case—but that step is not required. In any case, a special master  is not a lawyer who actually represents the accused website, nor the users whose access to information and speech may be affected. 

We know what site-blocking looks like when it’s put into practice. Supporters of site-blocking like to point to its use in other countries. But what we’re seeing in other countries is serious collateral damage to lawful websites. In Italy, 510 benign, non-streaming websites, including a Catholic convent and a telehealth platform, were blocked by the country’s “Piracy Shield” program. In Spain, a site-blocking system blocked more than 550,000 domains during soccer broadcasts, including sites belonging to Greenpeace and Harvard University.

Congress Should Reject Site-Blocking Proposals

More than a decade ago, Congress abandoned SOPA and PIPA after internet users pushed back against site-blocking and other threats to the open internet. We shouldn't start building that infrastructure now.

ACPA adds some safeguards, but those don’t fundamentally change what Congress is being asked to create: a system for blocking Americans’ access to entire websites at the request of copyright owners. By explicitly bringing VPNs into that system, the bill also reaches into basic tools that people use to access the internet safely and privately. Adding somewhat better procedures to a bad idea doesn’t turn it into a good idea.

The history of technology is rife with copyright panics.  In the 1980s, major rightsholders ran to Congress and the courts, claiming that videotape recorders (VTR) were “to the American film producer and the American public as the Boston strangler is to the woman home alone.” Then, the Supreme Court declined to embrace the hype, noting that the VTR was capable of all kinds of non-infringing uses, like time-shifting and cautioning courts to avoid rewriting copyright law in response to new technologies. We believe that courts now should be similarly wary about the hype surrounding AI.

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Hollywood’s hyperbole has echoed that of composer John Phillip Sousa, who claimed in 1906 that the player piano and the gramophone would destroy music composition; portrait artists who feared the camera would replace the paintbrush. None of these things happened. Cameras, for example, sparked a resurgence of portraiture and, by making it possible for more people to create images, led to unexpected developments—like the rise of photojournalism.

New markets, new ideas, and new creators are actually what copyright is supposed to promote, not restrict. Using copyright to lock in existing gatekeepers and massive rightsholders’ profits helps neither the public nor individual artists.

Generative AI has sparked the latest wave of anxiety and with it a massive wave of litigation. In multiple cases around the U.S. and the world, rightsholders are asking courts to do precisely what the Supreme Court warned against: dramatically expand copyright protections based in substantial part on hyperbole and speculation. They should decline to do so.

Copyright owners claim that unless courts abandon 300-year-old copyright principles—and give rightsholders the power to control non-infringing works created by others—an imagined flood of AI-generated works will devastate creative markets. Under this “market dilution” theory, building generative AI tools cannot be fair use because those tools might be encourage the proliferation of competing works.

As EFF has explained to the courts in multiple amicus briefs in Concord Music Group, Inc. v. Anthropic PBC and In re Mosaic LLM Litigation, that’s not how copyright works. In fact, accepting this theory would undermine copyright’s constitutional purpose: promoting the creation of expressive works for the public’s benefit. Because copyright law is designed to encourage others to build freely on existing works, it punishes infringement, not competition. The “market dilution” theory would eviscerate not only the fair use doctrine, but also other limits on copyright that work specifically to prevent rightsholders from unfairly suppressing competition by claiming broad ownership over tropes, genres, styles, and so on. In other words, publishers would wield unchecked veto power over any expression that might conceivably compete with a work they own.

The result? Art doesn’t get created, ideas are never expressed, and we’re all worse off. Copyright shouldn’t be a tool to silence future creative competitors—whether or not they use AI in their work.

And the plaintiffs in these cases get at least two other things wrong. First, research shows that large generative AI models are unlikely to produce infringing works because the more data on which a model is trained, the less any individual training example matters to any particular output.

Second, AI tools aren’t necessarily displacing human creativity. To take a just a few examples:

• Boston-based artist Nettrice Gaskins uses AI to create Afro-futurist art, including a portrait of Octavia Butler displayed at the San Francisco Airport

• Indian artists Prateek Arora and Varun Gupta use generative AI to reimagine Western science fiction.

• Philadelphia-based artist Alex Smith uses generative AI to reimagine Afrofuturism with queer, plus-sized Black superheroes.

• Ana Miljački, a professor of architecture at MIT, used generative AI to create a “non-liner documentary” film on Yugoslav World War II memorials and the values they embodied.

• A research-creation project used AI generated visual art to both amplify the voices of activists in the Iran Woman Life Freedom Movement and evaluate AI’s role in sociopolitical advocacy through art.

• AI company Bronze works with musicians like Disclosure and Jai Paul to create songs that never sound the same when played back twice, challenging audience conceptions of what music could be.

It is not the place of courts to say these people are not artists or that AI cannot augment human creativity in a positive way.

Given this range of experimentation, courts should be reluctant to decide in advance what tools do and do not foster “human creativity.” Like the VTR, large language models are general purpose tools, used by humans to do a broad variety of things far beyond generating lyrics. The effects of this particular technological innovation will doubtless be far-reaching, disruptive, and potentially harmful for some—but distorting copyright law is not the way to address those harms.

EFF is grateful for SerpApi’s generous support, helping us fight for your rights to speak and access information online. SerpApi has been giving to EFF every year since 2018, and alongside our 32,000 individual donors, their gift is critical to keeping up the fight.

Whether in the courts, halls of power, or broader policy debates, we appreciate the work this support has made possible over the years. Some examples:

• We sued the U.S. Department of Homeland Security and Department of State to stop an unconstitutional social media surveillance program to identify and punish individuals who express viewpoints the government disagrees with.
• We helped develop the Santa Clara Principles, a framework to reign in overbroad content moderation so that all users are treated fairly and offered consistent tools for recourse if their speech is censored by tech companies.
• In the whitepaper Unfiltered: How YouTube’s Content ID Discourages Fair Use and Dictates What We See Online, we pushed back on YouTube for silencing individual creators in the interest of protecting a small number of giant copyright holders.
• We stood with whistleblowers and dissidents persecuted for their online speech.
• We continued the fight to protect Section 230.

We live in an era when lawful speech and the right to access information are being targeted by Big Tech and governments around the world that are hostile to dissent. Free speech online is core to EFF’s mission, and SerpApi’s support will help us continue the fight to protect everyone’s right to free expression.