Wednesday, August 12, 2015

Message to Google: Don't Be Inconsistent - Part II

On August 10, the federal appeals court heard oral argument in an appeal from a near-unanimous decision of the International Trade Commission holding that certain digital transmissions are “articles” within the agency’s jurisdiction. The Wall Street Journal’s report by Jess Bravin on the appeals court argument is here. 
I wrote about this case back in July in my blog, “Message to Google: Don’t Be Inconsistent.” The blog provides the background information needed to understand the importance of the case – in other words, why it matters whether the ITC’s determination that it possesses authority to prevent the importation of digital goods that violate intellectual property rights is upheld or not. 
As I concluded in my blog:
“[I]t also should be emphasized that unless the ITC’s interpretation of the meaning of “articles” in the Tariff Act is clearly wrong, it makes sense for the statute to be construed to grant the agency authority to prevent importation of infringing digital data as well as infringing physical goods. After all, digital content comprises an increasingly large portion of international trade. Indeed, the Progressive Policy Institute has just released a new report titled 'Uncovering the Hidden Value of Digital Trade: Towards a 21st Century Agenda of Transatlantic Prosperity.' Not surprisingly, the report’s summary concludes: 'More and more, global trade has come to rely on a vital commodity: data.' In the digital age, reading the protection of digital data out of the ambit of the ITC’s authority would significantly shrink its ability to prevent the importation of pirated copyrighted works and patents.” 
A principal purpose of my earlier blog was to point out the seemingly inconsistent positions taken by Google and its allies, depending on the forum and the timing of their assertions, with regard to whether the ITC should be able to prevent the importation of pirated goods in the form of digital transmissions. Now they oppose ITC jurisdiction, while back during the SOPA fight in Congress, they pointed to the ITC as a proper venue for preventing unlawful digital transmissions from entering the country. 
I think there is a good argument as a matter of law that the ITC’s decision should be upheld. And there are certainly sound policy reasons, when so much of our international trade involves intellectual property in digital format, to hope that the appeals court agrees the ITC’s decision should be sustained. 

But if the courts ultimately disagree, then this is a matter Congress likely will need to consider.