SOPA and PIPA died in Congress two years ago in the face of massive protests by Internet users. But supporters of the legislation, such as the Motion Picture Association of America and Recording Industry Association of America, continue to push for SOPA-like antipiracy powers through other channels.
Now an obscure case, ClearCorrect Operating v. International Trade Commission, could give the federal trade agency the power to force ISPs to block websites and threatens to usher in a de facto SOPA ability to restrict the flow of information on the Internet.
ClearCorrect sent digital files over the Internet from a subsidiary in Pakistan to its Texas offices that were then used to 3D-print dental braces. Rival company Invisalign claimed the braces violated its patents, and parent company Align Technology -- rather than seeking an injunction through the courts -- turned to the ITC, an agency that typically regulates imported goods that infringe intellectual property rights, such as fake iPhones and knockoff Louis Vuitton handbags.
As Motherboard notes:
Because the ITC is an agency, not a federal court, it has different procedural rules that could greatly benefit rights-holders.... Cease-and-desists [from the ITC], can be issued without considering many of the factors that make it harder to get injunctions and temporary restraining orders from a federal court. Most importantly, the ITC is fast.
The MPAA advocated exactly this legal strategy in documents leaked in the WikiLeaks Sony dump. Whereas "SOPA as originally introduced included a provision allowing the Department of Justice to obtain court orders requiring ISPs to block their customers from accessing foreign websites deemed to be pirate sites, the MPAA memo [published by WikiLeaks] suggests that the MPAA would seek to obtain the same sorts of orders against ISPs, simply using the ITC rather than the DOJ," said Charles Duan, director of the Patent Reform Project at Public Knowledge.
While open Internet advocates argue that the ITC does not have authority to regulate the Internet, the agency last year ruled in favor of Align -- and asserted that its regulatory powers extend not only to physical goods but to the "electronic transmission of digital data."
That decision, now being reviewed by the U.S. Court of Appeals for the Federal Circuit, could have repercussions far beyond the world of digital dental images.
If the Federal Circuit upholds the ITC's claim to jurisdiction over electronic transmissions and digitized goods, "it could have huge implications for the way data moves across the global Web, and give the MPAA the site-blocking powers it's been grasping at for years," The Verge writes. "If a Web service like Gmail or Facebook ends up on the wrong side of a patent dispute, the court could forbid the service from transmitting data into the U.S. until the dispute is resolved.... It would also require powerful new tools for monitoring data as it crosses national borders, a fundamental break from the international structure of the Web."
As with SOPA and PIPA, simply the threat of legal action against ISPs might be all that's required to take something down.
The ITC's new powers could result in major problems for cloud computing, The Internet Association argued in an amicus brief supporting ClearCorrect. If companies expose themselves to a legal challenge every time they send data across U.S. borders, it would "effectively require the company to alter its operations throughout the world, including for data generated, stored, and served either wholly within or wholly outside of the United States, well beyond any conception of the jurisdiction of the ITC."
Other nonprofits and companies that favor an open Internet, such as Public Knowledge and Electronic Frontier Foundation and Google, have also filed briefs supporting ClearCorrect and warn of the "sweeping implications for the Internet and the ability of companies to operate efficient, dependable, global networks."
The MPAA and RIAA have filed an amicus brief supporting Align and the new jurisdiction for the ITC.
It may seem hard to believe that the future of the Internet is at stake in an "extremely boring case about invisible braces," but the Federal Circuit's ruling -- which will likely come late this year -- could decide whether the ITC becomes "the new digital cop."