No Borders Does Not Mean No Boundaries

Over this past weekend, it seems The New York Times Editorial Board got together, drank a little Googley Kool-Aid, and then wrote this Op-Ed provocatively titled Keep the Internet Free of Borders.  It is dismaying that, under the imprimatur of a respected name, an OpEd is published that succeeds in drawing such a typically blunt conclusion about an otherwise complex and nuanced issue of great importance.  Here’s what’s going on:

Historically, the U.S. International Trade Commission has the authority to block the importation of articles that infringe the intellectual property rights of American companies.  For instance, a U.S. based importer/wholesaler may not import counterfeits of consumer goods, and the ITC is empowered to enjoin such importation and enforce its authority through agencies like customs and border services.  But this past March, for the first time, the ITC concluded that articles under its purview may include the importation of digital files.  (Cue eerie violins.)

The case itself involves the Invisalign brand of dental aligners, which is a patented system owned by Align Technology.  A Texas-based company called ClearCorrect received data from an entity in Pakistan that contained digital models, design information, and treatment plans, which Align Technology argued can only be used “to infringe or induce the infringement” of its patents.  ClearCorrect argued that the ITC’s authority to restrict the importation of infringing articles does not extend to digital data, but the ITC ruled 5-1 in favor of Align after an administrative law judge concurred that the definition of “articles” in the statute does apply to digital imports, consistent with the ITC’s “legislative purpose to . . . prevent every type of unfair act in connection with imported articles . . . and to strengthen protection of intellectual property rights.”  This case has been appealed and was scheduled to be heard in federal court in Washington D.C. sometime today.

If the ITC’s broadening of the term articles under its purview is held to include digital data, this would certainly set a new precedent that will be attractive to owners of intellectual property.  And of course this prospect has not-surprisingly raised the hackles of digital rights proponents, who predict that granting the ITC this authority will “harm the free flow of information on the Internet.”  Unfortunately, this is the recurring narrative every time any entity, private or public, seeks to remedy any of the new forms of harm that are unavoidable byproducts of the new forms of communication, interaction, and data transmission that most of us enjoy.  Hence, editorials like the one from the Times perpetuate the frankly defeatist notion that our only options are either to accept the predations of bad actors or invite legal regimes that can only lead to censorship.

For a more detailed description of the Align case, I recommend this article written by my colleagues at the Center for the Protection of Intellectual Property.  In particular, I would draw your attention to the authors’ revelation that the usual suspects in Silicon Valley, who presently oppose upholding the ITC’s authority in this case were just a few years ago vociferously in favor of copyright owners using the ITC in precisely this manner. As part of that industry’s PR blitz against SOPA and PIPA, they widely supported the proposed OPEN Act, so named because it would “keep the Internet open.”  And as a component of this advocacy, OPEN’s corporate supporters recommended that the ITC was an ideal venue for rights holders to seek relief from entities committing infringement through digital data imports.

So, if nothing else, the Times editorial board might have done a little homework and recognized that if the Internet industry was once in favor of this type of ITC authority and is now opposed to it, this contradiction might awaken some dormant, journalistic instinct to a bit of skepticism.  Instead, the article concludes with an all-to-common statement that I would challenge anyone to define clearly.  It states, “The appeals court should strike down the commission’s ruling, which is bound to hamper the exchange of ideas and information on the Internet.”  I’ve encountered that hampering sentiment so many times, and it still doesn’t make any sense.  If the ITC blocks a shipment of counterfeit Nikes, and fair trade in sporting goods continues, why is it impossible to imagine that an equally narrow application of this same authority may apply to digital imports without harming the larger flow of information, let alone anything as esoteric as “ideas?”

At some point, this narrative has to change — the one that insists there is no way we will ever balance civil order and civil liberty in cyberspace — because every user has a stake in seeking balance, whether the concerns are privacy, personal security, or intellectual property that supports a business in any sector.  The Align case is about dental products, the Equustek case I wrote about involved systems communications hardware, and with advances in 3D printing technology, we can be sure there will be more and more trade in infringing trade secrets and  other intellectual property.  Hence, it should be clear that the growth in these unlawful and predatory practices, unique to the digital age, is already affecting interests far beyond the motion picture, music, and publishing industries.

Whatever the remedies may be, we should constantly demand specifics as to what it means to “harm the free flow of information on the Internet” because it’s not sufficient to accept that the definition is whatever the major internet companies say it is on any given day. (See above mentioned flip-flop on this very subject).  In fact, as Stephen Carlisle points out in this piece for Nova Southeastern University, in the last several months, site-blocking has been ordered in specific cases in the US, Canada, Germany, and Australia, yet here we are, using the Internet to exchange information and ideas.  What began as adolescent rationalizations for file sharing more than fifteen years ago has now metastasized into a social and corporate agenda that is attacking vital organs in our market-based economy.  We can do better.  Balancing civil order with civil liberty is what we’re supposed to be good at in this country.  We should not be afraid to try.

© 2015, David Newhoff. All rights reserved.

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28 comments

  • and with advances in 3D printing technology, we can be sure there will be more and more trade in infringing trade secrets and other intellectual property. Hence, it should be clear that the growth in these unlawful and predatory practices, unique to the digital age, is already affecting interests far beyond the motion picture, music, and publishing industries.

    I’ve spoken about this here before. Almost all manufacturing is digital to some extent. Nike shoes are produced from digital files. The files are used to create the molds for the shoes. Aircraft components are made from digital files, from which the wings and fuselage and engine turbine blades are manufactured. And so it goes. Digital files are not limited to mp3, avi, and jpeg. Hell even the fabrication of CPUs and memory chips are driven from digital files. Which legislator is going to differentiate between a Taylor Swift CD and a the manufacturing designs of a Pratt & Whitney?

  • Thanks for the info, David. Just cancelled my subscription. Sad.

  • “attacking vital organs in our market-based economy. ”

    Any “vital organs” threatened by us are just cancers. The evil 20th century “civil order”, the dark days of intellectual monopoly and the corporation, are ending. Don’t confuse a civilisation not to your liking with no civilisation…

    We can end intellectual monopoly and we will end intellectual monopoly. And yes, ultimately in all things, not just the traditional MAFIAA areas. And I do mean all – the sooner we are able to print off backup copies of ourselves the better really, eh?

    • I dunno where you live but if it is in any advanced economy then your entire standard of living is based on IP. It isn’t just movies, films, books and pictures. It is your job, directly or indirectly, too. All is based around digital files, all of which may be pirated, and no the chances of you being able to back yourself up ain’t happening in your lifetime. Even if it was possible YOU being no more than as Lenin would say “a useful idiot” wouldn’t have the wherewithal to do so. You are more likely to be scrounging for scraps from garbage dumps.

      • That’s the nice thing about digital data – copies can be shared freely.

        The only “useful idiots” round here are the ones supporting intellectual monopoly because they mistakenly think it helps artists or businesses. You’re being used by corporate scum.

      • Let me put this gentle so that you don’t feel too bad. You appear to be part of a generation that thinks taht stiff the artist is sticking it to the man. News the ‘Man’ is laughing his ass off. You act as if sneaking into the picture house is the height of rebellion. For a 10-12 yo that is kinda cute, for an adult whose standard of life depends on the ability to be able to exploit his intellectual abilities its sort of sad – in the way of Lemmings, which are kinda cute too.

    • Y’know, Mr. MOOP (if that really is your name), I almost didn’t approve your initial comment, but I figured what the hell. Clearly, I made the right decision because you really add something to the debate with observations like those. I don’t know why you’re so hostile to intellectual property when it never restricts anonymous ranting.

    • If you think Big Tech is interested in anything resembling economic equality I have a bridge to sell you. “we” won’t be printing backup copies of ourselves – Sergey, Larry and their buddies will. If you don’t like 20th century “intellectual monopolies and corporations” I don’t think you’ll like techno feudalism much better.

      • I love the 3D printing crowd. We’ve been at the forefront of additive manufacture for more than 15 years. For most people will end up printing a blob of expensive material rather than an actual useful object. Oh and expensive the material is. If you think that printer ink is a ripoff your eyes are really going to water when you see the gouging price of 3D printer material. Earlier this year we made a terrain model for a senior manager who was retiring. The model was about 18 by 6 inches, it cost us $5000 for the materials and took 3 weeks to print.

      • This is an old post that gets into the subject of expense of everyday 3D printing for the average consumer. http://illusionofmore.com/more-than-3dimensions/

    • MOOP wrote:
      “the sooner we are able to print off backup copies of ourselves the better really, eh?”

      Whoa. Hold up. Are you under the delusion that you could ‘upload’ yourself now if only it weren’t for those dastardly authors and artists?

      Please elaborate.

      • Hell we might be exploring the galaxy by now if it weren’t for intellectual monopoly law, which is by now well-understood empirically to retard progress and innovation [cf. Boldrin and Levine] and to be economically brain-damaged, never mind the obvious [to anyone well-versed in computing] well-documented threats to liberty.

        Over the past few centuries, the system has acted like sand in the gears of progress, slowing Enlightenment. Enough is enough. Us actual creators building the future should pay no more heed to the crying toddlers who scream ‘MINE’ when someone else has something that looks similar to something they have.

        right to copy, not copyright. go pirates.

      • You forgot “The South will rise again!” And “Obama’s coming for muh guns!” Avanti!

      • Hell we might be exploring the galaxy by now if it weren’t for intellectual monopoly law

        Bon voyage

      • Answer the question, MOOP: Are you under the impression that what is currently stopping you from ‘uploading’ yourself is… copyright? I really want to be sure this is what you actually think.

        It’s not our limited understanding of the biology of the brain, but–dun dun dun!–copyright? That’s what you’re saying? That’s one hell of a claim. Surely a man of logic like yourself can back this up?

        MOOP said:
        “Hell we might be exploring the galaxy by now if it weren’t for intellectual monopoly law…”

        Okay. Same thing here. Please back this claim up with a shred of evidence. I’ll take the flimsiest bit you got. I just can’t believe anybody else has ever said this.

        It’s not the vast, vast distance between the stars? 25 million miles to the nearest star, let alone the entire galaxy? Even if we left Earth at top speed in 1950, we still wouldn’t be a significant fraction of the distance to Proxima. We would have only just left the solar system maybe two decades ago. Only another 19,000 years to go before the next star!

        Elaborate on how copyright is the issue here.

        MOOP says:
        “Us actual creators…”

        Okay, you made the claim, now put your money where your mouth is: show us one of your creations. Show us the fuuuuuutuuuuure!!!

      • “Copyright stifles space travel!” That is a new one. Thanks for the chuckle, Patrik. Funny though that perhaps one of the greatest “explorers” of the universe is trapped inside the prison of a body that doesn’t work. Yet, we know his ideas both because of technology that enables him to communicate and because of a copyright system that supports the production and distribution of his works. It’s almost like it all works together somehow.

  • “That’s what you’re saying? ”

    No, that’s a straw man you’re trying to construct to knock down, you logic and/or reading comprehension skills are poor. The lack of progress caused by intellectual monopoly has provably and undoubtedly slowed progress on many technologies (I already provided the relevant reference regarding that actually, see if you can find it! It’s a google search away! I’m not providing a link though, I want you to use a search engine!) – e.g. the recent upsurge in 3d printing has more to do with expiry of key patent monopolies from the 1990s. We can’t and shouldn’t keep innovation to the old slow 20 year cycle the 20th century some evil yank greyhairs are comfortable with, we must unshackle engineers.

    “Okay, you made the claim, now put your money where your mouth is: show us one of your creations.”

    meh, no, you’d undoubtedly just harrass me personally, you people are like that. Mind you I’ve written literally millions of lines of code over the past 4 decades, there’s a fair chance some aspect of your life is using a copy of some lines I wrote in some open source program though.

    “because of a copyright system”

    Copyright monopoly deserves no credit for physicists’ work, that’s profoundly stupid. There’s a reason physicists make sure to use the internet to self-publish on arxiv these days, they’re thoroughly sick of the copyright idiocy from the luddites too. You’re pretty much in everyone’s way… Or did you miss the whole open access movement too along with everything else over the past decade? Good luck attacking the physics and engineering community along with us compscis, you MAFIAA stooges.. we may make p2p sharing software, they make nukes…

    • So, assuming you’re a prodigy and began writing useful, marketable code at the age of 10, you’re now 50-something? Or did you start writing code as an adult and you’re now in your 60s? I’m just asking because your approach to discourse is more…I guess “youthful” is the nice way to put it.

      • Well, 8-bit juvenilia may not count as “useful, marketable” code (but I didn’t attach such qualifiers). I started programming a while after learning to read. Maybe still a little unusual back then, but nowadays a lot of kids learn around that age. I ain’t some beautiful and unique snowflake. Child computer programmer == child genius is a trope that was becoming rather stale in silly 80s hollywood movies, never mind today. I recall my younger brother getting in-school programming exposure at an early age too: Remember schoolkids playing with bbc micros etc. and turtles? But note how that video (assuming the link works) is of stuff that was current, like, 33 years ago now! Computers are thousands of times more powerful now. A digital generation is already all growed up and having kids. Time’s a passin’, eh? But I sure don’t want my kids growing up in a world where silly intellectual monopolies are still a thing.

      • @John Warr

        Huh, nope, I’m not that guy, even if he is doing some neat stuff. It may help to know “Moop” is a “South Park” reference (“South Park” is an American satirical cartoon show), there’ll inevitably be people using it in context of criticism of intellectual monopoly…

        (aside: in this case I’m genuinely not him, but it does help illustrate what I anticipated: copyright monopoly supporters tend to go creepy stalker. Something about their privacy-hating psychological makeup I guess)

      • Just living up to your expectations.
        no, you’d undoubtedly just harrass me personally, you people are like that.

        Damn you make work hard. Anyway looking up people is a equal opportunities thing you can be pro or anti copyright, pro or anti gun, pro or anti whatever.

        Anyway “evil yank greyhairs” was pretty indicative of you not being based in California … OTOH.

    • The open access movement got us… What, exactly? A shitty, inaccurate, troll-prone encyclopedia?

      How are people going to work and live in your open source utopia? You sneer at communism and (presumably) socialism but without some form of government control we won’t get paradise – we’ll get the Wild West or the gilded age: lots and lots of poor people at the mercy of a few obscenely rich corporations. You claim not to support Google or Microsoft, but guess what? They are the only winners in your scenario. We aren’t all colonizing Mars, my friend.

      • You do not know what the open access movement is. Most of the stuff it has ‘got us’ is probably rather beyond you though…

      • Then enlighten us, please. What is this glorious open access movement gotten us?
        And how are creators supposed to, you know, eat and stuff until the singularity makes us immortal?

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