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On Wednesday, the International Trade Commission delivered a 64-page brief to a federal appeals court in a dispute that may impact the future of global anti-piracy efforts, but what the U.S. government agency is downplaying as “a case about teeth… not a case that threatens to bring down the Internet.”
Specifically, the case is about patented orthodontic appliances and whether the ITC has the authority to ban the importation of a 3D print design.
While it might sound a little funny that invisible braces have given the entertainment sector a big smile and the tech sector a huge frown, a ruling last year by the ITC to prohibit ClearCorrect from importing digital data connected to the 3D print holds implications to the Motion Picture Association of America and Google, which both opined in the matter.
In analyzing whether or not it could stop importation through electronic transmission, the ITC had to examine whether digital dental models qualify as an “article” under Section 337 of the Tariff Act of 1930.
From a Feb. 10, 2004 letter by an MPAA lawyer to the ITC, here’s why Hollywood studios care about this one:
“[D]igital distribution of articles such as movies and television shows, music, e-books, and software is a rapidly growing mode of domestic and international commerce, both legitimate and illegitimate. International trade in works protected by intellectual property rights has become very substantial. In many industries, such as the motion picture and music industries, electronic transmissions of content are growing rapidly and there is movement away from shipments using older modes such as DVDs and CDs. To effectuate Congressional intent to protect domestic industries, the Commission can and must construe the term ‘articles’ to include imported electronic transmissions…”
On the other side comes the argument that Section 337 is limited to “physical” articles in commerce and that the ITC doesn’t have jurisdiction over electronic transmission of digital data. It’s said such authority has been reserved for the Federal Communications Commission.
But there’s possibly larger stakes here because while the case directly deals with teeth straightening, the MPAA is involved, and that’s freaking out those who spend their time worrying about the sharp teeth of “content gatekeepers.” Here’s an excerpt from an amicus brief from Public Knowledge and the Electronic Frontier Foundation:
“Unlike imported physical goods, which arrive at defined ports of entry and are subject to inspection by customs, Internet data transmissions enter the United States through private communications carriers known as Internet service providers. Thus, the ITC’s decision to treat data transmissions as imported articles raises real and unanswered questions about the enforcement role that such service providers will play. For example, if the Commission were to exercise its powers against Internet service providers and other telecommunications providers for data transmission activities, those service providers could be required to actively block transmission of certain content.”
The matter is now before the United States Court of Appeals for the Federal Circuit and will be one of two very big rulings in the coming months dealing to various degrees on what kinds of obligations that Internet Service Providers might have on the anti-piracy front. The other case is Google’s efforts to shield itself from subpoenas served by the attorney general of Mississippi. That case involves a discussion of safe harbors under Section 230 of the Communications Decency Act and whether state prosecutors can investigate Google for facilitating distribution of unlawful content and products. More on that dispute in a future post.
In the ClearCorrect appeal, while the implications are as clear as the company’s orthodontic appliances, the ITC still hopes to dissuade the appeals court from any hysteria.
“The amici supporting ClearCorrect raise concerns about the Internet generally, but lose sight of the fact that this is a case about teeth,” writes the ITC in its brief. “This is not a case that burdens Internet service providers and it is not a case that threatens to bring down the Internet. To the extent that cease and desist orders in future cases raise the amicis’ concerns about Internet service providers, the Commission and the Court can confront those cases on a proper record then.”
That kind of deflection aside, the ITC defends the broad interpretation of “article,” says it’s misguided to think that U.S. trade authorities haven’t been conferred authority over data transmissions, and also gives its view that the law that must conform with the times. Footnote #9 is the closest the MPAA gets to red meat. After objecting that a reading of Congress’s mind in 1922 with regard to “articles” would put out-of-bounds all future inventions lawmakers couldn’t have appreciated back then, the ITC cites the 1975 ruling, Twentieth Century Music Corp. v. Aiken, concerning commercial radio. In that opinion, Justice Potter Stewart wrote, “Although Congress did not revise the statutory language, copyright law was quick to adapt to prevent the exploitation of protected works through the new electronic technology.”
The MPAA and the RIAA are brushing their teeth as well.
The trade groups for the film and recording industries have teamed together on an amicus brief (read in full here) that warns the federal appeals court against upsetting the ITC’s “articles” interpretation lest it “effectively read copyright protection out of Section 337 because electronic transmission is the mode by which most unauthorized copyrighted works are imported into the United States.”
Along with discussion of the impact of e-importation comes the additional argument from the MPAA/RIAA that by the time Congress amended Section 337 in 1988, lawmakers had already extended copyright protection to electronic copies of works. “It cannot be that Congress sought to enhance the protection of intellectual property rights under Section 337 by taking away the Commission’s authority to address copyright infringement in the then already common circumstance of electronically copied works,” states the brief. “Congress does not, as the Supreme Court has observed, ‘hide elephants in mouseholes.'”
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