Tag: CPIP

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.

Techdirt’s Masnick reveals own irrelevance.

Mike Masnick, editor and founder of Techdirt often writes like a smug frat boy, substituting scorn for ideas, and is frequently careless about fact-checking. This may be be why his mantra sounds sillier every day, as he bangs on about all that is wrong with just about anyone who believes copyright still plays a role in the digital age.  Seriously, other than die-hard myrmidons, is anyone still listening to what he’s saying?  Because he’s in danger of becoming the poster child for everything that is wrong with the very things he purports to defend.

Most recently, Masnick revealed his capacity for carelessness when he wrote this blog post about an event he did not attend, focusing on two words taken way out of context, and then making no effort to confirm the basis of his tantrum.  The subject was a recent conference hosted by the Center for the Protection of Intellectual Property, which included panelist Sandra Aistars, CEO of Copyright Alliance. (I have worked with both organizations.) Masnick claims in his post that Aistars was “insisting that the efforts for copyright reform are really coming ‘from criminal elements’ and that no one in ‘any sort of innovative sector’ is actually on board with copyright reform.”  Had Mike bothered to wait for the video of that meeting, he might have heard  the following, in which Aistars adds to her recap of 40 years worth of debate and discussion on copyrights thus:

And an element that goes a little bit further than what we’ve heard before and almost seeks the entire elimination of intellectual property protection, and that element I think is coming in its most aggressive form not from any sort of innovative sector in any business, but is coming more from the, I’ll call them “criminal elements,” cyberlockers, entities like that who support and benefit from cyberlockers, and they are not interested intellectual property in any way, and I think those of us who rely on intellectual property in our business lives are just collateral damage. 

So, in case any Techdirt readers (or editors) need that simplified, Aistars is making a very clear distinction between real innovators — whose voices she welcomes and has always welcomed to any discussion — and actual criminals who really don’t deserve a seat at the table.

And speaking of not deserving a seat at the table, people who are incapable of presenting ideas that challenge the imagination beyond cheap sarcasm and false reporting have clearly lost contact with the nuanced evolution of this ongoing debate.  In other words, when you just start making shit up as an excuse to keep calling everyone who supports copyright a “maximalist” (whatever the hell that means), it might be a sign you’ve run out of things to say.  By coincidence, I happen to be on my way to attend a similar event hosted by CPIP as I write this, and all of the topics for discussion are written humbly in the inquisitive and not in the conspiratorial imperative that guys like Masnick like to imply.  Experienced adults are trying to solve problems and come up with new ideas; and all the sniping from the kids’ table doesn’t speak well  for the cause of the Internet as a medium for enlightened discourse.

UPDATE:  It looks like while I was writing the above, Mike updated his own post in order to both reveal the full quote in context and then stand by his bizarre assertion.  All I can say is that perhaps what Aistars ought to have said is that the copyright debate is being skewed by a criminal element and also some really stupid people.