Google Needs Consistent Position on ITC Role in Enforcing IP Rights on Digital Goods, FSF's May Says

Google needs to take a consistent position on the International Trade Commission’s role in IP rights enforcement, said Free State Foundation President Randolph May in a blog post Tuesday. Google had said in 2014 comments on the Align Technology-ClearCorrect patent case that ITC authority to prevent infringing imports doesn’t extend beyond physical goods. The ITC voted 5-1 that digital goods like the digital scans of dental appliances at issue in ClearCorrect’s case constitute “articles” that are within the commission’s purview under Section 337 of the 1930 Tariff Act. Align’s appeal of the ITC ruling is set for oral arguments Aug. 4 at the U.S. Court of Appeals for the Federal Circuit. Google and allies claimed during the 2011-2012 debate over the Stop Online Piracy Act (SOPA) that online infringement “should be treated as an international trade issue,” May said. “For well over 80 years, the independent International Trade Commission (ITC) has been the venue by which U.S. rightsholders have obtained relief from unfair imports, such as those that violate intellectual property rights. Under Section 337 of the Tariff Act of 1930 -- which governs how the ITC investigates rightsholders' request for relief -- the agency already employs a transparent process that gives parties to the investigation, and third party interests, a chance to be heard,” Google and other SOPA opponents said in a fact sheet supporting the alternative Online Protection and Enforcement of Digital Trade Act. “In light of these statements touting the efficacy of international trade remedies, and the fact that SOPA and the OPEN Act obviously were all about protecting digital data, not physical goods, it's hard to believe that Google is now arguing that the imported ‘articles’ over which the ITC possesses authority do not include digital content,” May said. Google didn’t immediately comment.