Today, Public Knowledge filed a brief in a federal appeals case, on the question of whether internet data transmissions are “articles of importation” subject to the authority of an international trade agency of the United States.
The case is ClearCorrect v. International Trade Commission before the Court of Appeals for the Federal Circuit. The International Trade Commission, or ITC, is a federal agency that has the power to stop importation of articles that infringe patents. In a decision last April, the ITC decided that transmission of digital data on the internet qualified as “importation of articles into the United States,” such that the agency’s power over trade could reach to Internet communications.
The amicus curiae brief of Public Knowledge, which was joined by the Electronic Frontier Foundation, argues that the ITC, as a trade agency, does not and should not have power over communications systems such as the internet.
The following may be attributed to Charles Duan, Director of the Patent Reform Project at Public Knowledge:
“Although the open internet has defined our era and spurred countless innovations and developments in technology, threats to an open internet come from all sides. In this case, we have an agency of international trade choosing to improperly try its hand at blocking content on the internet by claiming downloads are “imported articles” subject to customs regulation.
“The ITC, until six months ago, focused nearly exclusively on physical goods being brought into the United States by ships or planes. No one would have thought of their internet downloads as ‘importation’ subject to customs regulation, any more so than an overseas telephone call or satellite radio station would be considered ‘imported articles.’ Thus, the ITC’s decision is simply contrary to an ordinary understanding of importation, in addition to being an alarming reversal of decades of policy favoring growth of an open internet.
“The decision to treat digital data as an article of importation raises the question of whether all telecommunications, including phone calls, audio streams and television broadcasts, are also articles of importation. Additionally, we must now ask if internet service providers, telecommunication companies, or even individual internet users can be summoned before the ITC. Unless the Federal Circuit rejects the ITC’s overboard and incorrect decision, these questions may plague the courts and the public for years to come.”
Our brief can be found here.
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