Message to Google: Don't Be Inconsistent

by

Randolph J. May  

Famously, Google's motto is "Don't Be Evil."

But there are times I wish Google would change its mantra to "Don't Be Inconsistent." And then follow the injunction.

Here's a good example.

Google is now arguing that the International Trade Commission does not possess authority to prevent entry into the United States of digital content that infringes upon intellectual property rights protected by law. Google took this position in a case before the ITC in which the six-member Commission, with only one dissenting vote, disagreed with its assertion that the agency's authority to prevent infringing imports should be limited to physical goods.

Section 337(a)(1)(B) of the Tariff Act of 1930 grants the ITC the authority to prevent the importation for sale into the U.S. of "articles" that infringe valid copyrights and patents. Contrary to Google's position, the Commission held that digital files constitute "articles" within the meaning of the statute. The case is now on appeal before the Court of Appeals for the Federal Circuit with oral argument scheduled for August 4, 2015 - and with Google still maintaining that the "articles" over which the ITC has jurisdiction do not include digital data.

The ITC case involves the importation of digital scans of dental appliances claimed to infringe patents. Suffice it to say that it is unnecessary here to bite off any more of the facts of the case than you or I can comfortably chew. Indeed, my purpose is not to sink my teeth into the arguments about the validity of the particular dental patents but rather to make a larger, more fundamental point concerning the ITC's jurisdiction - and what Google previously has said about it.

Back in 2011-2012, when the Stop Online Piracy Act (SOPA) was being debated, Google and its allies opposing the bill intended to combat online piracy, suggested online infringement should be treated as an international trade issue. In a FAQ sheet opposing SOPA and supporting the alternative OPEN Act, here is what Google and its allies had to say then:

"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. The ITC's process and work is highly regarded as independent and free from political influence and the department already has a well-recognized expertise in intellectual property and trade law that could be expanded to the import of digital goods.

The Commission already employs important safeguards to ensure that rightsholders do not abuse their right to request a Commission investigation and the Commission may self-initiate investigations. Keeping them in charge of determining whether unfair imports - like those that violate intellectual property rights - would ensure consistent enforcement of Intellectual Property rights and trade law."

Mind you, this followed a heading asking: "Why is the International Trade Commission the best agency to handle cases of copyright and trademark infringement?"

And this too came from Google and its allies in supporting the OPEN Act: "This approach targets foreign rogue sites without inflicting collateral damage on legitimate, law-abiding U.S. Internet companies by bringing well-established international trade remedies to bear on this problem."

But it 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 21^st 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.

I'm not accusing Google of being evil, of course. Just of being inconsistent.

I'd rather not have to suggest that Google change its motto to "Don't Be Inconsistent."

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