No.

2014-1527
In the

United States Court of Appeals

for the Federal Circuit
CLEARCORRECT OPERATING, LLC, and
CLEARCORRECT PAKISTAN (PRIVATE), LTD.,
Appellants,
v.
INTERNATIONAL TRADE COMMISSION,
Appellee,
ALIGN TECHNOLOGY, INC.,
Intervenor.
Appeal from the United States International Trade Commission,
Inv. No. 337-TA-833
Brief of Amici Curiae Public Knowledge
and the Electronic Frontier Foundation
in Support of Appellants
Charles Duan
Public Knowledge
1818 N Street NW, Suite 410
Washington, DC 20036
(202) 861-0020
cduan@publicknowledge.org
Counsel for amici curiae

CERTIFICATE OF INTEREST
Pursuant to Rules 29(a) and 47.4 of the Federal Circuit Rules of Practice, counsel of record certies as follows:
(1) e full name of every party or amicus represented by counsel to this brief
is Public Knowledge and the Electronic Frontier Foundation.
(2) e above-identied parties are the real parties in interest.
(3) e corporate disclosure statement of Rule 26.1 of the Federal Rules of
Appellate Procedure is as follows: ere is no parent corporation to or any corporation that owns 10% or more of stock in Public Knowledge or the Electronic
Frontier Foundation.
(4) e names of all law rms and the partners and associates that have appeared for the party in the lower tribunal or are expected to appear for the party
in this court are: Charles Duan, Public Knowledge, Washington, DC.

Dated: October 16, 2014

/s/ Charles Duan

Charles Duan
Counsel for amici curiae

TABLE OF CONTENTS
CERTIFICATE OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I.

e Commissions Broad Construction of Articles Cannot Be Correct Because the Commission Does Not Have Jurisdiction over
Telecommunications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. At the Time of the Enactment of the Tari Act of 1930, Data
Transmissions Were Clearly Distinguished from Articles of Commerce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
B. Contrary to the Commissions Assumptions, Congress Was Fully
Apprised of the Nature of Data Transmissions . . . . . . . . . . . . 9

II.

Strong, Well-Established Policy Considerations Disfavor ITC Jurisdiction over Telecommunications Data . . . . . . . . . . . . . . . . . . . . 12
A. Internet Service Providers Should Not Be Burdened with Mandates to Inspect Data Transmissions . . . . . . . . . . . . . . . . . . 13
B. Existing Legal Policy Warns Against Inhibiting an Open Internet,
and Similar Principles Should Be Followed Here . . . . . . . . . . . 15

III. is Court Should Reject the Commissions Overbroad Construction

of Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . 22
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

ii

TABLE OF AUTHORITIES
Cases
Alice Corp. Pty. Ltd. v. CLS Bank Intl, 134 S. Ct. 2347 (2014) . . . . . . . . . . 1
CLS Bank Intl v. Alice Corp., 685 F.3d 1341 (Fed. Cir. 2012) (panel decision),
vacated and rehg en banc granted, 484 Fed. Appx. 559 (Fed. Cir. 2012) . . . . . 15
Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010) . . . . . . . . . . . . . . . 16
I4i Ltd. Pship v. Microso Corp., 598 F.3d 831 (Fed. Cir. 2010), ad, 131 S.
Ct. 2238 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
In re Certain Digital Models, Digital Data, & Treatment Plans for Use in Making Incremental Dental Positioning Adjustment Appliances, the Appliances
Made erefrom, & Methods of Making the Same, Inv. No. 337-TA-833 (U.S.
Intl Trade Commn Apr. 9, 2014) . . . . . . . . . . . . . . . . . 3, 5, 7, 9, 1820
Kyocera Wireless Corp. v. Intl Trade Commn, 545 F.3d 1340 (Fed. Cir. 2008) . . 3
Leloup v. Port of Mobile, 127 U.S. 640 (1888) . . . . . . . . . . . . . . . . . . . 11
Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301 (Fed. Cir. 2009) . . . . . . . . 13
Microso Corp. v. i4i Ltd. Pship, 131 S. Ct. 2238 (2011) . . . . . . . . . . . . . 13
Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120 (2014) . . . . . . . . . 1
Octane Fitness, LLC v. Icon Health & Fitness, Inc., 134 S. Ct. 1749 (2014) . . . . 1
Paul v. Virginia, 75 U.S. (7 Wall.) 168 (1869), overruled by United States v.
S.-E. Underwriters Assn, 322 U.S. 533 (1944) . . . . . . . . . . . . . . . . . . . 7
Pensacola Tel. Co. v. W. Union Tel. Co., 96 U.S. 1 (1878) . . . . . . . . . . . . 7, 10
Preserving the Open Internet, 25 F.C.C.R. 17905 (2010) (report & order), available at hps://apps.fcc.gov/edocs_public/aachmatch/FCC-10-201A1_Rcd.
iii

pdf, vacated in part sub nom. Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014) . . . 16
Raerman v. W. Union Tel. Co., 127 U.S. 411 (1888) . . . . . . . . . . . . . . . 10
Ratzlaf v. United States, 510 U.S. 135 (1994) . . . . . . . . . . . . . . . . . . . . 8
Religious Tech. Ctr. v. Netcom On-Line Commcn Servs., Inc., 907 F. Supp.
1361 (N.D. Cal. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Reno v. Condon, 528 U.S. 141 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 7
Superguide Corp. v. DirecTV Enters., Inc., 358 F. 3d 870 (Fed. Cir. 2004) . . . . . 20
Tel. Co. v. Texas, 105 U.S. 460 (1882) . . . . . . . . . . . . . . . . . . . . . . 6, 10
Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014) . . . . . . . . . . . . . . . . . . . 16
W. Union Tel. Co. v. Lenroot, 323 U.S. 490 (1945) . . . . . . . . . . . . . . . 7, 10
W. Union Tel. Co. v. Pendleton, 122 U.S. 347 (1887) . . . . . . . . . . . . . . . . 6
Constitutional Provisions
U.S. Const. art. 1, 8, cl. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Statutes
35 U.S.C. 271 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Communications Act of 1934, Pub. L. No. 73-416, 48 Stat. 1064 (codied as
amended at 47 U.S.C. 151621 (2012)) . . . . . . . . . . . . . . . . . . . . . 8
Communications Decency Act of 1996, 47 U.S.C. 230 (2012) . . . . . . . . . 17
Copyright Act of 1909, Pub. L. No. 60-349, 35 Stat. 1075 . . . . . . . . . . . . 11
Digital Millennium Copyright Act, 17 U.S.C. 512 (2012) . . . . . . . . . . 14, 17
iv

Electronic Communications Privacy Act, 18 U.S.C. 2511 (2012) . . . . . . . 14

Mann-Elkins Act, Pub. L. No. 61-218, 36 Stat. 539 (1910) . . . . . . . . . . . . 11
Tari Act of 1930, Pub. L. No. 71-361, 46 Stat. 590 . . . . . . . . . . . . . . . 78
Tari Act of 1930 337, 19 U.S.C. 1337 (2012) . . . . . . . . . . 36, 810, 12
Townsend Amendment, Pub. L. No. 62-303, 37 Stat. 488 (1912) . . . . . . . . . 11
Other Sources
Janet Abbate, Inventing the Internet (1999) . . . . . . . . . . . . . . . . . . . . 16
Arlington Speaks with Paris Again, N.Y. Times, Oct. 24, 1915, at 8 . . . . . . . 10
Bruce E. Boyden, Can a Computer Intercept Your Email?, 34 Cardozo L. Rev.
669 (2012), available at hp://www.cardozolawreview.com/content/34-2/
BOYDEN.34.2.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
H.R. Rep. No. 105-551 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Timothy R. Holbrook & Lucas S. Osborn, Digital Patent Infringement in an
Era of 3D Printing, 48 U.C. Davis L. Rev. (forthcoming 2014), hp://papers.
ssrn.com/sol3/papers.cfm?abstract_id=2483550 . . . . . . . . . . . . . . . . . 13
J. Sco Holliday et al., Policy Brief No. 10, Internet Benets: Consumer Surplus and Net Neutrality (2011), hp://policyintegrity.org/les/publications/
Internet_Benets.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Mehan Jayasuriya et al., Forcing the Net rough a Sieve: Why Copyright Filtering is Not a Viable Solution for U.S. ISPs (2009), hps://www.
publicknowledge.org/pdf/pk-ltering-whitepaper-200907.pdf . . . . . . . . . 14
Al Kohn & Bob Kohn, Kohn on Music Licensing (4th ed. 2010) . . . . . . . . . 11
Marconi Tells of His Latest Success, N.Y. Times, Jan. 25, 1903, at 10 . . . . . . . 10
v

William F. Patry, Patry on Copyright (2012) . . . . . . . . . . . . . . . . . . . 11

S. Rep. No. 73-781 (1934), reprinted in A Legislative History of the Communications Act of 1934, at 711 (Max D. Paglin ed., 1989) . . . . . . . . . . . . . . 9
Song Pluggers by Subtle Art Purvey Wares, N.Y. Times, Feb. 15, 1925, at 18 . . . 11
Christopher H. Sterling & George Shiers, History of Telecommunications
Technology (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Telecomm. Standardization Sector, Intl Telecomm. Union, Rec. ITU-T
H.323, Packet-Based Multimedia Communications Systems (2009), available
at hp://www.itu.int/rec/T-REC-H.323-200912-I/en . . . . . . . . . . . . . . 20
e Atlantic Telegraph, N.Y. Times, Aug. 7, 1858, at 1 . . . . . . . . . . . . . . 10

vi

INTEREST OF AMICI CURIAE

Amicus curiae Public Knowledge is a non-prot organization that is dedicated
to preserving the openness of the Internet and the publics access to knowledge;
promoting creativity through balanced intellectual property rights; and upholding and protecting the rights of consumers to use innovative technology lawfully.
As part of this mission, Public Knowledge advocates on behalf of the public interest for a balanced patent system, particularly with respect to new and emerging
technologies.
Amicus curiae the Electronic Frontier Foundation is a nonprot civil liberties
organization that has worked for more than 20 years to protect consumer interests, innovation, and free expression in the digital world. EFF and its more than
24,000 dues-paying members have a strong interest in helping the courts and
policy-makers in striking the appropriate balance between intellectual property
and the public interest.
Public Knowledge and the Electronic Frontier Foundation have previously
served as amici in key patent cases. E.g., Alice Corp. Pty. Ltd. v. CLS Bank Intl,
134 S. Ct. 2347 (2014); Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120
(2014); Octane Fitness, LLC v. Icon Health & Fitness, Inc., 134 S. Ct. 1749 (2014).
Pursuant to Federal Rule of Appellate Procedure 29(a), all parties have consented to the ling of this brief. Pursuant to Rule 29(c)(5), no counsel for a party

authored this brief in whole or in part, and no counsel or party made a monetary
contribution intended to fund the preparation or submission of the brief. No person or entity, other than amici, their members, or their counsel, made a monetary
contribution to the preparation or submission of this brief.

SUMMARY OF ARGUMENT
In the sweeping and unprecedented decision below, the International Trade
Commission found that its authority to regulate trade extends to pure electronic
transmission of digital data untied to any physical medium. In re Certain Digital
Models, Digital Data, & Treatment Plans for Use in Making Incremental Dental Positioning Adjustment Appliances, the Appliances Made erefrom, & Methods of Making the Same, Inv. No. 337-TA-833, slip op. at 55 (U.S. Intl Trade Commn Apr. 9,
2014). Generally, by statute, the Commissions jurisdiction is limited to oversight
of importation . . . of articles. Tari Act of 1930 337(a)(1)(B), 19 U.S.C. 1337
(2012). However, the Commission expansively construed the term articles to
potentially include anything bought and sold in commerce, thereby leading to
its conclusion that digital data was an article of importation. E.g., Certain Digital Models, slip op. at 41. is broadly sketched statutory construction fails to
indicate clearly any limiting principles on the Commissions power.
Among other things, the Commissions decision leaves open the question of
whether all transmissions of telecommunications data are within the scope of its
authority.
e Commission, being a creature of statute, is most certainly limited in its
power. Kyocera Wireless Corp. v. Intl Trade Commn, 545 F.3d 1340, 1355 (Fed.
Cir. 2008). In particular, as explained in detail below, the Commission does not

have jurisdiction over general telecommunications data transmissions, such as

telephone calls, telegraph messages, and television and radio broadcasts. e
historical context of the Tari Act of 1930 evinces absolutely no legislative contemplation of ITC authority over telecommunications, and strong policy considerations favor openness of communications channels such as the Internet and
thus disfavor the Commissions manufacturing of new powers over data transmissions.
Accordingly, for the reasons set forth in detail below, this Court should reject
the Commissions overzealous construction of the statutory term importation . . .
of articles. e Court should articulate those limiting principles, ignored by the
decision below, that circumscribe the Commissions authority, at least to ensure
that the agency cannot assert power over all international telecommunications
data transmissions.

ARGUMENT
I.

The Commissions Broad Construction of Articles Cannot Be

Correct Because the Commission Does Not Have Jurisdiction
over Telecommunications
e Commission construed the term articles in section 337 as, and thus ef-

fectively handed itself jurisdiction over, essentially all items as are bought and
sold in commerce. E.g., Certain Digital Models, slip op. at 41; cf. id. at 16 (Johanson, Commr, dissenting) (criticizing this construction as overly broad). It
arrived at this broad construction in large part based on historical evidence from
the time of the enactment of the Tari Act of 1930. See, e.g., id. at 3940, 43 (citing
pre-1930 dictionary denitions of article).
However, the historical evidence in fact suggests otherwise. Evidence from
the early 1900s indicates that Congress and others would have cleanly distinguished importation and telecommunication, vesting authority over each in distinct agencies. Treating the Commission as having authority over telecommunications data, then, conicts with this distinction. To the extent that the Commissions interpretation of digital data as an imported article encompasses such
telecommunications data, this Court should reject that erroneous interpretation
of the Commissions purview.
Whether the Commissions interpretation reaches so far is treated in this
brief in Section III infra p. 18.

A.

At the Time of the Enactment of the Tariff Act of 1930, Data

Transmissions Were Clearly Distinguished from Articles of
Commerce
ere is substantial evidence that, around 1930, data transmissions were gen-

erally understood to be distinct from articles of commerce and international trade.

is understanding inuenced Congress, as reected in its creation of separate
and distinct agencies to oversee trade and telecommunications.
e distinction was highlighted by the Supreme Court as early as 1887, in
considering one specic type of telecommunications data, namely telegrams:
Other commerce deals only with persons, or with visible and tangible
things. But the telegraph transports nothing visible and tangible; it
carries only ideas, wishes, orders, and intelligence. Other commerce
requires the constant aention and supervision of the carrier for the
safety of the persons and property carried. e message of the telegraph passes at once beyond the control of the sender, and reaches
the oce to which it is sent instantaneously. It is plain, from these
essentially dierent characteristics, that the regulations suitable for one
of these kinds of commerce would be entirely inapplicable to the other.
W. Union Tel. Co. v. Pendleton, 122 U.S. 347, 356 (1887) (emphasis added). Based on
this distinction, the Supreme Court went on to hold that state statutes regulating
the transmission of telegrams were unconstitutional. See id. at 359.
at telecommunications were seen as distinct from other commerce is evident from other contemporaneous case law. Although telegraph services were
frequently described as commerce by the Supreme Court, individual telegrams
have never been described as articles of commerce. See, e.g., Tel. Co. v. Texas, 105
6

U.S. 460, 464 (1882) (citing Pensacola Tel. Co. v. W. Union Tel. Co., 96 U.S. 1 (1878)).
In fact, every single opinion of the Supreme Court prior to 1930 used the phrase
article of commerce in connection with a physical good, except for a string
of cases holding that insurance contracts, being intangible, were not articles of
commerce. See, e.g., Paul v. Virginia, 75 U.S. (7 Wall.) 168, 183 (1869), overruled by
United States v. S.-E. Underwriters Assn, 322 U.S. 533 (1944). Of note, in 1945, the
Supreme Court construed the statutory text articles or subjects of commerce,
and held that telegraph messages were subjects, but not articles. See W. Union
Tel. Co. v. Lenroot, 323 U.S. 490, 502 (1945).
Statutory language also conrms the view that telecommunication diers
from trade. Although the Tari Act of 1930 imposed taris on all manner of
goods from acid anhydrides to Zante currants, its schedules do not once include
telegraph messages, radio broadcasts, telephone calls, or other transmissions. See
Tari Act of 1930, Pub. L. No. 71-361, 1, 1, 742, 46 Stat. 590. Duties are imposed by the Act on telegraph, radio, telephone equipment such as devices, wires,
e Commissions citation to Reno v. Condon, 528 U.S. 141, 148 (2000), for
the proposition that digital les are articles of commerce, Certain Digital Models, slip op. at 40, is thus inapposite. Condon is beer understood as holding that
data is commerce within the meaning of the commerce clause, not that data constitutes an article for purposes of importation. See 528 U.S. at 148 ([D]rivers
information is, in this context, an article of commerce . . . . (emphasis added)).
e negative conclusions of this paragraph were conrmed by conducting
date-limited searches for the term article(s) of commerce in Supreme Court
opinions.
7

and telephone poles, see id. 1, 316, 353, but not on the data sent by that
equipment. Telecommunications data is simply not contemplated in the text of
the Act.
Use of term article in the Tari Act is also revealing. In describing the items
being taried, the Act uses the word article 268 times. Every single use of the
term, though, is within a context that makes clear that the word article refers
only to tangible goods. See, e.g., id. 1, 385 (articles made wholly or in chief
value of tinsel wire, metal thread, lame or lahn). us, the statutory text belies
the Commissions broad construction. Cf. Ratzlaf v. United States, 510 U.S. 135,
143 (1994) (A term appearing in several places in a statutory text is generally
read the same way each time it appears.).
Any remaining suggestion that the Tari Act of 1930 was intended to invest
the International Trade Commission with jurisdiction over data transmissions is
laid to rest by the passage of the Communications Act of 1934. Pub. L. No. 73-416,
48 Stat. 1064 (codied as amended at 47 U.S.C. 151621 (2012)). at act created the Federal Communications Commission, centralizing authority in that
body with respect to interstate and foreign commerce in wire and radio communication. Id. sec. 1. e Senate report explained that the FCC was to have regulatory power over all forms of electrical communication, whether by telephone,
telegraph, cable, or radio, and that the prior patchwork of authority indicated a

vital need for one commission with unied jurisdiction over all these methods of
communication. S. Rep. No. 73-781, at 1 (1934), reprinted in A Legislative History
of the Communications Act of 1934, at 711 (Max D. Paglin ed., 1989). It is hard to
believe that Congress would invest a trade commission with authority over data
transmissions and then only three years later create a commission with unied
jurisdiction over those same data transmissions. e logical conclusion is that
Congress did not intend for the ITC to have authority over data transmissions.
Accordingly, there is no historical precedent for the Commissions authority
extending to telecommunications data transmissions. Insofar as the decision below read the term articles . . . of importation to reach so far, the Commission
erred.
B.

Contrary to the Commissions Assumptions, Congress Was

Fully Apprised of the Nature of Data Transmissions
e Commission was willing to broadly construe the term articles in large

part because, as it said, the Tari Act of 1930 was draed at a time when internet
downloads were not in existence. Certain Digital Models, slip op. at 36. So the
Commission found that the statute, originally understood only to cover tangible
articles, should be reinterpreted to cover digital goods, in view of how the fundamental nature of international commerce has evolved since 1930. Id. at 4344.
us, the Commissions reasoning reects an assumption that, in 1930,

Congress (1) was unfamiliar with data transmissions, (2) did not know that data
transmissions were regulable commerce, or (3) did not recognize that infringement of intellectual property could occur through data transmissions. All three
of these assumptions are incorrect, for the following reasons.
First: although Internet downloads did not exist in 1930, plenty of other transmissions of telecommunications data, including cross-border transmissions, did
exist and were certainly known to Congress at that time. Trans-Atlantic telegraph cables were laid and sending messages as early as 1858. See e Atlantic
Telegraph, N.Y. Times, Aug. 7, 1858, at 1. Guglielmo Marconi sent the rst radio
transmission from the United States to the United Kingdom in 1903. See Marconi
Tells of His Latest Success, N.Y. Times, Jan. 25, 1903, at 10. A telephone call between Arlington, Virginia and Paris, France was completed in 1915. See Arlington
Speaks with Paris Again, N.Y. Times, Oct. 24, 1915, at 8. us, if the term articles
in section 337 so certainly encompassed intangible data, as the Commission believed, then Congress would have been well apprised of this when draing the
Tari Act of 1930.
Second: these developments in technology were certainly recognized as
within the scope of commerce when section 337 was enacted. Numerous cases
in the Supreme Court recognized telegraphy as a form of commerce. Between
See, e.g., Tel. Co., 105 U.S. at 464; Pensacola Tel. Co. v. W. Union Tel. Co., 96 U.S.
1, 10 (1878); Lenroot, 323 U.S. at 50203; Raerman v. W. Union Tel. Co., 127 U.S.
10

1910 and 1933, telephone, telegraph, and cable companies were within the jurisdiction of the Interstate Commerce Commissiona commission with the very
word commerce in its name. See Mann-Elkins Act, Pub. L. No. 61-218, sec. 7, 1,
36 Stat. 539, 54445 (1910). So Congress would have known that telecommunications data could be the subject of legislation at the time of draing the Tari Act.
ird: concern for intellectual property rights in the face of electronic transmissions is no new problem, contrary to the Commissions view. Radio broadcasts posed the same problems to intellectual property owners in the early 1900s
as digital les pose today. Said one representative of a music publishing business:
e public will not buy songs that it can hear almost at will by a brief manipulation of the radio dials. Song Pluggers by Subtle Art Purvey Wares, N.Y. Times, Feb.
15, 1925, at 18; see also Al Kohn & Bob Kohn, Kohn on Music Licensing 10 (4th ed.
2010) (describing E.C. Mills, chair of the Music Publishers Protective Association,
as sensing that the radio broadcasting could threaten the very foundations of the
music publishing industry). And Congress has contemplated intellectual property issues in new technologies in legislation from time to time. So Congress
411, 425 (1888); Leloup v. Port of Mobile, 127 U.S. 640, 645 (1888).
See, e.g., Copyright Act of 1909, Pub. L. No. 60-349, 1(e), 35 Stat. 1075 (creating statutory licensing system for mechanical reproductions of music); Townsend
Amendment, Pub. L. No. 62-303, 37 Stat. 488 (1912) (providing copyright protection for motion pictures). See generally 1 William F. Patry, Patry on Copyright
1:46 (2012) (between the 1909 and 1976 Copyright Acts, there was a series of
amendments designed principally to take into account new technologies . . . .).
11

would have known that data transmission was a potential avenue of intellectual
property infringement. us, omission of data transmissions from section 337
should be seen as a deliberate, intentional choice.
e Commission found it appropriate that the term articles should be construed exibly to t new technologies such as the digital data transmissions at
issue. But that nding is in error, because Congress has had numerous opportunities to contemplate analogous data transmissions, and each time has declined to
extend the Commissions authority to reach them. is Court should not allow
the Commission to unilaterally take that step where Congress has never ventured.
II. Strong, Well-Established Policy Considerations Disfavor
ITC Jurisdiction over Telecommunications Data
Aside from the evidence presented above that section 337, properly interpreted, does not cover telecommunications, there are important reasons why
section 337 ought not cover telecommunications. Among those reasons, explained in detail below, are (1) that treatment of data transmissions as articles
of importation could give rise to conicting legal burdens for those carrying the
data, and (2) that such treatment would thwart the open Internet and its widely
accepted benets to innovation.

12

A.

Internet Service Providers Should Not Be Burdened with

Mandates to Inspect Data Transmissions
Unlike imported physical goods, which arrive at dened ports of entry and

are subject to inspection by customs, Internet data transmissions enter the

United States through private communications carriers known as Internet service providers. us, the ITCs decision to treat data transmissions as imported
articles raises real and unanswered questions about the enforcement role that
such service providers will play. For example, if the Commission were to exercise its powers against Internet service providers and other telecommunications
providers for data transmission activities, those service providers could be required to actively block transmission of certain content.
As unseled as the implications of the decision below may be, it is well
seled that, as a maer of policy, Internet service providers should not be reWhat theory of infringement could be brought to bear against a third party
data carrier is a separate and unseled problem. None of the exclusive rights
(making, using, selling, or oering to sell) would seem to apply to a mere carrier. A number of commentators have theorized that data transmission alone
can constitute contributory patent infringement under 35 U.S.C. 271(c). See, e.g.,
Timothy R. Holbrook & Lucas S. Osborn, Digital Patent Infringement in an Era of
3D Printing, 48 U.C. Davis L. Rev. (forthcoming 2014) (manuscript at 27 & note 96),
hp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2483550. But the cases cited
for that proposition do not clearly take that position. See i4i Ltd. Pship v. Microso
Corp., 598 F.3d 831, 849 (Fed. Cir. 2010) (e parties infringement arguments did
not turn on whether Words custom XML editor was a component . . . .), ad,
131 S. Ct. 2238 (2011); Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1321 (Fed.
Cir. 2009) (We need only respond that the Supreme Court . . . did not address the
meaning of material or apparatus in 271(c).).
13

quired to actively inspect or block data transmissions. At least two laws suggest this: 2511 of the Electronic Communications Privacy Act and 512 of the
Digital Millennium Copyright Act. See generally Mehan Jayasuriya et al., Forcing the Net rough a Sieve: Why Copyright Filtering is Not a Viable Solution
for U.S. ISPs 4954 (2009), hps://www.publicknowledge.org/pdf/pk-lteringwhitepaper-200907.pdf.
First, the Electronic Communications Privacy Act makes any person who intentionally intercepts . . . any wire, oral, or electronic communication subject
to criminal and civil penalties. 18 U.S.C. 2511(1)(a) (2012). us, seeking out
data transmissions in compliance with a Commission order conicts with that
statutes policy of privacy for communications data. Cf. Bruce E. Boyden, Can
a Computer Intercept Your Email?, 34 Cardozo L. Rev. 669 (2012), available at
hp://www.cardozolawreview.com/content/34-2/BOYDEN.34.2.pdf (considering
whether an Internet service provider automatically processing data can violate
the Wiretap Act).
Second, the Digital Millennium Copyright Act provides an online service
provider with a safe harbor from copyright liability. at section specically
states that its safe harbors are not conditioned upon a service provider monitoring its service or armatively seeking facts indicating infringing activity. 17
U.S.C. 512(m)(1) (2012). Indeed, the safe harbors were intended to codify the de-

14

cision in Religious Technology Center v. Netcom On-Line Communication Services,

Inc., which specically exempted Internet service providers from direct copyright
liability because [b]illions of bits of data ow through the Internet and are necessarily stored on servers throughout the network and it is thus practically impossible to screen out infringing bits from noninfringing bits. 907 F. Supp. 1361,
137273 (N.D. Cal. 1995); see H.R. Rep. No. 105-551, pt. 1, at 11 (1998). us, this
statute as well indicates a policy that Internet service providers not be required
to monitor data transmissions for infringing content.
Permiing the Commission to maintain jurisdiction over data transmissions
thus creates new issues for Internet service providers, of the type that Congress
has intentionally sought to avoid creating for them in other areas of law. is
Court should seek to avoid creating these unnecessary issues by limiting the Commissions jurisdiction to a proper scope.
B.

Existing Legal Policy Warns Against Inhibiting an Open Internet, and Similar Principles Should Be Followed Here
No citation is necessary for the proposition that the rapid rise of computer

technology has been the dening characteristic of this age. Much of that
But see, e.g., CLS Bank Intl v. Alice Corp., 685 F.3d 1341, 1350 (Fed. Cir. 2012)
(panel decision) (e computer, with all of its hardware and soware variations,
may be one of the greatest inventions of all time, and there can be no question
that advances in computer technology have fostered and will continue to foster
innovation in all areas of science and technology.), vacated and rehg en banc
15

developmentboth technologically and socially, in the areas of free speech, culture, and expression, for examplecan be aributed to the Internet, and particularly the openness of the Internet. e ability of anyone to connect to the
Internet and oer content and services, without approval of content gatekeepers,
has created innumerable businesses, jobs, innovations, creative works, and other
benets to society as a whole.
Policymakers have long recognized the importance of craing law that protects this open Internet. Most prominently, in 2010 the Federal Communications Commission issued an order designed to ensure the Internet remains an
open platformone characterized by free markets and free speech. Preserving
the Open Internet, 25 F.C.C.R. 17905, 17908 (2010) (report & order), available at
hps://apps.fcc.gov/edocs_public/aachmatch/FCC-10-201A1_Rcd.pdf, vacated
in part sub nom. Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014). Similarly, Congress
enacted immunities from liability for Internet service providers, in order to to
promote the continued development of the Internet and other interactive comgranted, 484 Fed. Appx. 559 (Fed. Cir. 2012).
See, e.g., Comcast Corp. v. FCC, 600 F.3d 642, 661 (D.C. Cir. 2010) (describing
the Internet as arguably the most important innovation in communications in a
generation); Janet Abbate, Inventing the Internet 182 (1999) ([T]he openness of
the system invited users to create new applications . . . .); J. Sco Holliday et al.,
Policy Brief No. 10, Internet Benets: Consumer Surplus and Net Neutrality 7 (2011),
hp://policyintegrity.org/les/publications/Internet_Benets.pdf (e Internet
has evolved from an esoteric service to connect university computing labs into
the primary communication tool of our age.).
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puter services and other interactive media. Communications Decency Act of

1996, 47 U.S.C. 230(b)(1), (c)(1) (2012). ese indicate a policy of the United
States to preserve the vibrant and competitive free market that presently exists
for the Internet and other interactive computer services. 230(b)(2); see also 17
U.S.C. 512 (limiting copyright infringement liability for similar reasons).
ITC authority to police Internet data transmissions, particularly at the level
of service providers, would be a step in the wrong direction in view of these
policies. e threat of a Commission cease and desist order could cause service
providers to refuse carriage of new and innovative services, block access to data,
and otherwise restrain an open and unfeered arena of technological growth.
Such a result would be contrary not only to the Internet itself, but also to the
basic principles of patent law, namely to promote the progress of science and
the useful arts. U.S. Const. art. 1, 8, cl. 8.
Certainly the Commissions specic holding in the present case does not immediately present these problems: the named respondent was the consumer of
the data transmission, not a carrier or Internet service provider. But because the
construction of articles by the Commission is so broad, it is conceivable that
this decision could be misused as precedent for testing novel theories of thirdparty intermediary liability. e Court should put those erroneous theories to
bed in this case.

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III.

This Court Should Reject the Commissions Overbroad Construction of Articles

In view of the above arguments, this Court should reject the Commissions

sweepingly overbroad construction of the term importation . . . of articles.

ough the decision purports to deal with digital data, the Commissions opinion fails to indicate any outer limit on its construction, which could potentially,
though wrongly, be read to encompass telecommunications services such as telephone calls and broadcast mediaservices certainly outside the jurisdiction of
the Commission.
Action by this Court is necessary because the decision below, on its face, articulates no limiting principles on the scope of the Commissions authority. e
Commission construed the term articles highly expansively, seeing no limitations on the term either in the statutory language or the legislative history. See,
e.g., Certain Digital Models, slip op. at 38 (It appears to broadly cover infringing
imports, without express limitation as to form or type of said articles.); id. at
44 (Congress intended the statute expansively to embrace articles that may
be traded in commerce, regardless of form or type.). Indeed, the Commission
viewed the term articles to encompass essentially anything exchanged in commerce. See, e.g., id. at 39 (nding dictionary denitions to indicate a meaning of
an identiable unit, item, or thing, with examples indicating that such articles
may be traded in commerce or used by consumers); id. at 43 (according to the
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Blacks Law Dictionary of 1910, the term articles broadly covers items that are
bought and sold in commerce).
Based on the expansive reading of the term articles, it is unclear how all
telecommunications transmissions, or at least a large portion of them, are not
considered articles and thus brought within the jurisdiction of the Commission.
All sorts of telecommunications data are commercially exchanged in the marketplace. Buying and selling transmission time runs the gamut of history from
per-word telegraph charges to per-minute cellular phone usage. Television stations sell airtime to advertisers. Radio may be streamed for purchase by satellite. All of thesetelegraph words, telephone minutes, advertising slots, radio
streamscould qualify as items that are bought and sold in commerce. Cf. id. at
16 (Johanson, Commr, dissenting) (In fact, there are things that are not articles under anyones denition, which could be bought and soldfor example a
service.).
It may be tempting to believe that the digital data implicated in this case is
easily distinguished from telecommunications data transmissions as a whole. But
such a distinction is not so easy to articulate. e digital models of patients teeth
at issue were, at base, a series of bytes, or numbers, sent over a communications
See generally Christopher H. Sterling & George Shiers, History of Telecommunications Technology (2000) (citing historical references).

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channel to be interpreted by a computer as a three-dimensional model. See id. at

16. But a telephone call in a voice-over-IP system is nothing more than a series
of bytes sent over a communications channel to be interpreted by a computer as
a sound. See, e.g., Telecomm. Standardization Sector, Intl Telecomm. Union, Rec.
ITU-T H.323, Packet-Based Multimedia Communications Systems 14 (2009), available at hp://www.itu.int/rec/T-REC-H.323-200912-I/en. So too are television
and radio broadcasts nothing more than signalsnow oen digitalinterpreted
by appropriate receivers as audio or visual performances. See Superguide Corp. v.
DirecTV Enters., Inc., 358 F. 3d 870, 881 (Fed. Cir. 2004). e article being imported supercially looks the samea series of byteswhether it is a digital data
set, a telephone conversation, or a broadcast.
It is certain, for at least the reasons presented in the previous sections, that
the International Trade Commission does not and should not have jurisdiction
over telecommunications transmissions such as telephone calls and broadcasts.
But the Commissions opinion is indeterminate at best as to why that should be
so. is indicates that the Commissions statutory construction is awed, and
necessitates this Courts clarication of the proper scope of the Commissions
jurisdiction.

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CONCLUSION
For the foregoing reasons, this Court should reverse the decision of the International Trade Commission.
Respectfully submied,
Dated: October 16, 2014

/s/ Charles Duan

Charles Duan
Public Knowledge
1818 N Street NW, Suite 410
Washington, DC 20036
(202) 861-0020
cduan@publicknowledge.org
Counsel for amici curiae

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CERTIFICATE OF COMPLIANCE
is brief complies with the type-volume limitation of Federal Rules of Appellate Procedure 32(a)(7)(B), 28.1(e)(2), and 29(d). e brief contains 4,633 words,
excluding the parts of the brief exempted by Federal Rule of Appellate Procedure
32(a)(7)(B)(iii).
is brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) or Federal Rule of Appellate Procedure 28.1(e) and the type
style requirements of Federal Rule of Appellate Procedure 32(a)(6). e brief has
been prepared in a proportionally spaced typeface using the xelatex typeseing
system, in the font Linux Libertine.

Dated: October 16, 2014

/s/ Charles Duan

Charles Duan
Counsel for amici curiae

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CERTIFICATE OF SERVICE
I hereby certify that on October 16, 2014, I caused the foregoing Brief of
Amici Curiae Public Knowledge and the Electronic Frontier Foundation
in Support of Appellants to be electronically led with the Clerk of the Court
using CM/ECF, which will automatically send email notication of such ling to
the following counsel of record:
Michael D. Myers
mike@mmellp.com
Robert Henry Espey, II bob@mmellp.com
McClanahan Myers Espey, LLP
Gary Hnath
Paul Whiteld Hughes
Mayer Brown, LLP

ghnath@mayerbrown.com
phughes@mayerbrown.com

Sidney A. Rosenzweig sidney.rosenzweig@usitc.gov

Wayne W. Herrington wayne.herrington@usitc.gov
International Trade Commission
Stephen Blake Kinnaird stephenkinnaird@paulhastings.com
omas A. Counts
tomcounts@paulhastings.com
Igor Victor Timofeyev igortimofeyev@paulhastings.com
Paul Hastings LLP

Dated: October 16, 2014

/s/ Charles Duan

Charles Duan
Counsel for amici curiae

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