New front in Internet freedom battle: Dental braces

by Mario Trujillo - 08/11/15 4:22 PM ET

A court case argued Tuesday over a product to straighten teeth has become the latest front in the battle over the open Internet.

Major technology trade groups and open Internet advocates have urged the U.S. Appeals Court for the Federal Circuit to strike down a ruling by the U.S. International Trade Commission (ITC) that found it has the authority over the import of data that represents a digital good — an expansion from its historical authority over the import of physical goods.

Groups like The Internet Association, Public Knowledge, the Electronic Frontier Foundation and dozens of others warned that the ruling could be used to revive the failed Stop Online Piracy Act, potentially “opening the door to Internet content-blocking efforts rejected by Congress and the public.”

{mosads}Chief Circuit Judge Sharon Prost, one of the three judges reviewing the case, put the issue into clear focus Tuesday. She said she was confused by the government’s attempt to try and “cabin” what would be a huge legal precedent into nothing more than a case about straight teeth.

“It does seem to me that if we were to affirm the commission here, we would be saying the ITC has jurisdiction over electronic transmissions,” she said during oral arguments. “I don’t see very many limiting principles there that might apply to future cases.”

The ITC has the authority to block the importing of articles that infringe on intellectual property rights. One of the central questions in Tuesday’s case rests on whether its definition of “article” includes digital data.

The worry is that if the case is not overturned, patent and copyright holders could use the commission to block U.S. access to foreign websites that contain infringing material.

The ITC tried to relieve some of those worries Tuesday. It said digital services (as opposed to digital goods), phone calls and digital items not bought and sold would not be subject to ITC enforcement under its new ruling. It also said Internet hosting companies would continue to have safe-harbor protections, which relieves their liability from hosting infringing third-party content.

The case has renewed a longtime battle pitting net neutrality activists against those looking to strengthen intellectual property protections. But the central case deals with the import of data necessary to make 3D-printed dental aligners.

The case was brought by Align Technology — the maker of Invisalign — which successfully urged the ITC to bar rival company ClearCorrect from importing infringing products into the United States. ClearCorrect has appealed.

The quirk that has riled tech companies and open Internet supporters is that ClearCorrect did not import physical dental aligners, over which the trade commission has historically had authority. Instead, the company imported digital files that allowed it to print the dental aligners in the United States.

In an alleged attempt to circumvent U.S. patent protections, ClearCorrect scanned customers’ teeth and eventually printed out the clear dental aligners in the United States. But the patented method used to create the blueprints for the corrective braces was done in Pakistan. This back-and-forth was done digitally by uploading and downloading data online.

ClearCorrect said the importation of digital goods is a novel topic, but it is better left up to Congress.

“Instead of the ITC unilaterally expanding its new power to try and cope with this brave new world — which I suggest is really no different from the old world — this is a matter that should be left to Congress,” Michael Myers, the company’s attorney, said.

The Motion Picture Association of America and the Recording Industry Association of America have filed briefs opposing that position. They argued that most copyrighted work these days comes in the form of electronic transmissions, and the law governing the ITC was written to reflect the evolving realities of the marketplace.

The trade commission largely echoed that Tuesday.

“Their organic statutes are broad enough to encompass trade in its various forms, and that is our position here with respect to articles and digital goods,” said Sidney Rosenzweig, an attorney for the ITC.

The Internet Association has worried, however, that the decision could impair the function of cloud technology, noting that data centers are scattered across the globe, and data is transferred without regard for national borders.

Others have called on the court to clarify that “the agency cannot assert power over all international telecommunications data transmissions.” They say that would create an unworkable system, which could end up requiring Internet service providers to block entire websites that contained even some infringing material.

Tags United States International Trade Commission