Google is making America's trade arbiter look patently daft. The search giant and other technology companies say an International Trade Commission (ITC) ban on imports of infringing items in digital form could disrupt the internet. Websites and cloud computing firms could also become even easier prey for patent trolls.
The ITC's remit is to block foreign "articles" that violate intellectual property rights. A recent case, though, raised the novel question of whether the term "articles" includes digital models imported electronically to help make teeth-straightening devices. The commission said in April that it does - despite decades of defining "articles" to mean only tangible goods.
The context makes the ruling understandable up to a point. Music, software, data for 3D printers and many other bits of information move over the internet. If that creates loopholes that skirt patents, just as clever legal structures lacking economic substance help avoid tax, say, there's an argument for making the workarounds illegal.
But that's not the ITC's call. As Google, eBay and others stress in a legal brief filed under the auspices of the Internet Association, allowing a minor US agency to regulate internet traffic could seriously impede the global movement of data. It would also encourage so-called trolls, which own patents but make nothing, to file lawsuits demanding that the ITC block websites, file-sharing services and a host of other online businesses.
The commission is already a favourite forum for trolls, which account for about a quarter of its cases. And no wonder: the ITC decides disputes in half the time taken by federal courts and has more leeway to issue orders quashing alleged infringers. The likes of Apple and Samsung even use it as a battleground for their smartphone wars. The agency, created in 1916 to support American trade policy, holds almost a fifth of US patent trials.
Thorny issues like how to protect intellectual property from online infringement are for Congress to decide - or at least courts steeped in precedent. A federal appeals court is about to weigh in on the teeth-straightening case. To paraphrase Google's corporate motto, it's the perfect opportunity to remind the ITC not to be evil.
The ITC's remit is to block foreign "articles" that violate intellectual property rights. A recent case, though, raised the novel question of whether the term "articles" includes digital models imported electronically to help make teeth-straightening devices. The commission said in April that it does - despite decades of defining "articles" to mean only tangible goods.
The context makes the ruling understandable up to a point. Music, software, data for 3D printers and many other bits of information move over the internet. If that creates loopholes that skirt patents, just as clever legal structures lacking economic substance help avoid tax, say, there's an argument for making the workarounds illegal.
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The commission is already a favourite forum for trolls, which account for about a quarter of its cases. And no wonder: the ITC decides disputes in half the time taken by federal courts and has more leeway to issue orders quashing alleged infringers. The likes of Apple and Samsung even use it as a battleground for their smartphone wars. The agency, created in 1916 to support American trade policy, holds almost a fifth of US patent trials.
Thorny issues like how to protect intellectual property from online infringement are for Congress to decide - or at least courts steeped in precedent. A federal appeals court is about to weigh in on the teeth-straightening case. To paraphrase Google's corporate motto, it's the perfect opportunity to remind the ITC not to be evil.