A fight over a patented way to straighten teeth may wind up giving Hollywood studios, book publishers, software developers and other copyright holders a new ally in their fight against piracy. At issue is whether the U.S. International Trade Commission — a federal agency that resolves complaints about imports that violate U.S. copyrights, patents and trademarks — has jurisdiction over data that comes into the country through the Internet.
The dispute pits Align Technology of San Jose, which makes Invisalign braces, against ClearCorrect of Round Rock, Texas, which makes a competing brand of transparent teeth-straighteners. Align initially sued ClearCorrect in federal court for allegedly violating its patented method, which involves creating multiple digital models of a patient's teeth to produce the succession of plastic braces. The lawsuit revealed that ClearCorrect was sending scans of its customers' teeth to an affiliate in Pakistan, which created digital models on computers before sending the data back to 3D printers in Texas to be transformed into molds for braces. Align then went to the ITC, which ordered ClearCorrect to stop importing the tooth-model data from Pakistan.
The decision, if it stands, would be a watershed — the first time the ITC stopped imports that arrived electronically. And the major studios and record labels are eager to explore how the agency might help stop foreign websites from delivering bootlegged movies and songs to U.S. Internet users. But a number of technology industry companies have joined ClearCorrect in challenging the decision, arguing that the law gives the ITC purview only over tangible goods. Besides, they say, the ITC can't exactly order U.S. customs agents to open every digital packet entering the country and inspect it for infringing items. Stopping information from flowing through the Internet isn't as simple as turning away a truckload of infringing orthodontics at the border.
Still, entire industries are replacing their physical products with digital ones. Confining the ITC to tangible goods would leave it unable to do the job Congress created it to do, which is to protect U.S. companies from unfair competition by foreign rivals.
Granting the ITC jurisdiction over data imports should not, however, lead to the agency imposing broad restraints on Internet service providers in the hope of shutting down foreign piracy hotbeds. The agency's reach shouldn't extend beyond those directly involved in or profiting from the infringements, whether it be digital or physical. And to make sure the ITC stays within that boundary, Congress should specify just how far the agency can go to remedy infringements online.