The Internet Has Never Been Free of Borders


Kacper Pempel/Reuters

The New York Times ran an editorial Monday that displays a very poor understanding of both the inner workings of the Internet and the nature of intellectual property. Effectively, the editorial champions the use of the Internet to circumvent intellectual property laws in order for it to conform to a fictitious status quo.

For starters, let’s bear in mind the fact that the Internet we use today runs on a routing system controlled by something called “Border Gateway Protocol“, BGP for short. BGP was devised in a few months to enable to Internet to continue running after the backbone of the research Internet, the National Science Foundation’s NSFNet, was shut down in the mid-’90s. The borders that BGP works with are the intersection points between privately owned and operated networks. When AT&T connects to Comcast or Verizon, it does so with a set of routes communicated across network borders by BGP. So Internet traffic only crosses network borders consciously and deliberately.

BGP is a system of “policy-based routing”, where the policies are established by the interconnecting networks. It’s perfectly normal for networks to refuse traffic from other networks they regard as rogues. Spammer-friendly networks are cut off all the time, that’s how BGP works.

The case that has the Times in a tizzy involves a firm that was using the Internet to outsource dental work done by a particular system that requires license fees to be paid in countries that honor international agreements regarding intellectual property. The defendant was shipping work to Pakistan where it could be done without paying fees, and then importing the finished work back to the US. If such a system is used to counterfeit purses, the imported purses would be seized at the US border. Here’s how the Gray Lady summarizes the case:

The case involves digital files containing information on dental aligners, used to straighten teeth, sent over the Internet by a company in Pakistan to a business in Texas. Last year, the United States International Trade Commission, a relatively obscure federal agency, ruled that the Texas company, ClearCorrect, could not import those files because they violated patents owned by Align Technology. ClearCorrect has appealed the decision to the United States Court of Appeals for the Federal Circuit in Washington D.C., which is scheduled to hear the case on Tuesday.

The Times says the US ITC has made a bad ruling because the result is SOPA-like in its attempt to bar access to information unlawfully distributed. This may well be the case; while digital information and patented processes deserve international protection, this protection obviously doesn’t have to mimic the protection afforded to tangible goods in every detail, and it doesn’t have to impose undue burdens on ISPs or even customs inspectors. So there’s an ongoing policy discussion about the whys and wherefores of intellectual property in digital form. The issues aren’t resolved, so the debate will continue until we come to a balance point.

In the meantime, it’s wise not to go to extremes. Piracy is not laudable, and digital goods are not tangible goods. While we’re developing policy for the role of Internet service in protecting legitimate intellectual property protection – and it definitely has one – lets not cloak the Internet in an even greater fog of mythology than those created in the interests of net neutrality, the anti-SOPA movement, and the “Internet always leads to democracy” ideals. Take the Internet for what it is, consider what it can become, and don’t invent fictions when we have perfectly sensible evidence of the importance of border disciplines to making the whole thing work. Good fences.