A Boring Invisible Braces Lawsuit that Could Have Resurrected SOPA Dies Again

Back in August I wrote about ClearCorrect v. ITC, a boring case about invisible braces that could have resurrected portions of SOPA.

On Tuesday, the Federal Circuit ruled that the International Trade Commission (ITC) lacks authority over internet downloads, and the opinion was about as blistering as a 35-page ruling on administrative law could be.

The question was whether the commission, which was formed to regulate "articles" crossing the border, had any authority over electronic transmissions like digital downloads.

"[C]ommonsense dictates that there is a fundamental difference between electronic transmissions and 'material things,'" wrote Chief Judge Prost. The decision cited eight different dictionaries from the 1920s and 1930s to prove that people in 1930 didn't think the word "articles" included electronic transmissions.

On top of that, said the appeals court, the ITC was so bad at "cit[ing] evidence correctly" that the decision was too "unreasonable" to be upheld.

"In sum," the the Federal Circuit concluded, "the Commission repeatedly and unreasonably erred in its analysis of the term 'article.'"

This means that for now, rightsholders can't use the ITC to get the kind of site-blocking orders that were a part of the Stop Online Piracy Act (SOPA). After SOPA was killed in Congress in 2012 due to a massive public outcry, the Motion Picture Association of America considered alternative strategies to gain the same powers it sought from SOPA. The agency was thinking about using ClearCorrect to go to the ITC for court orders against ISPs, according to leaked documents from Sony.

The ITC is a federal agency that polices infringing imports, like knock-off Louis Vuitton handbags. In ClearCorrect, the parent company for Invisalign went after a competitor that had transmitted the files for 3D printing models of invisible braces over the internet.

That's not exactly the same thing as a shipping container full of bootleg DVDs, but in 2014, the ITC decided that it still had the power to decide the case. According to the ITC, the word "articles" in Section 337 of the Tariff Act of 1930 (which establishes and empowers the ITC) could include digital transmissions, like internet downloads.

Sure, internet downloads were never mentioned in the legislative history, the statute, or the dictionaries of the time. For the ITC, that just meant "articles" could be read loosely to include digital files. And that meant a federal agency that dealt primarily with counterfeit goods might suddenly have the power to issue site-blocking orders against internet service providers.

But on Tuesday, the Federal Circuit overturned the ITC's ruling, finding that the word "articles" doesn't include data. In doing so, the Federal Circuit ran through a veritable pile of contemporary dictionaries—far more than the ITC had. The court also examined the legislative history and the wording of the statute. All that evidence indicated that the people of 1930 thought of "articles" as "material things"—physical objects that arrived at the US border in boats and trains and (very rarely) planes.

On top of that, said the Federal Circuit, the ITC's decision had to be overturned for its sheer "irrationality." The ITC opinion had ignored key legislative history; had taken note of contradicting dictionary definitions, but without explaining why they had to be dismissed; and—worst of all—misleadingly modified a key quote from a 1922 Senate report without even noting the modification.

All in all, a resounding slap-down for the ITC—and one that sounds pretty sensible, too. For the layperson, the Federal Circuit's logic seems to check out. The only questions remaining are: How did this case managed to get so far? And why did there have to be 35 pages to explain that in 1930, no one thought "articles" included internet downloads?

ClearCorrect is a fun exercise in statutory construction and Chevron deference (an administrative law doctrine that gives wide latitude to federal agencies). If you don't know what that is, and you're not a lawyer, don't worry about it. All you need to know is that for a couple of months, the future of the internet rested on a stack of dictionaries from the 1920s and 1930s.

The law can be dumb like that. But for now, site-blocking isn't sneaking through the backdoor of the ITC. The story of how invisible braces nearly resurrected SOPA can now be laid to rest.