Tuesday, January 18, 2005

ROB: Ottawa intervenes in RIM case

The Canadian Department of Justice file an amicus curiae brief with the U.S. federal appeals court—odd move. RIM is involved in an ongoing intellectual property debate with the a patent holding company in Virginia called NTP Inc. NPT alleges that RIM infringed on their intellectual property and a district court in Virginia agreed, awarding US$53.7-million in damages and a royalty of 8.6 per cent of North American BlackBerry sales to NTP, and imposing an injunction from the making, selling, or servicing of BlackBerrys in the United States. The injunction was stayed during the appeal.

Here’s the weird bit: under US law, patents only extend to the border. A US court can’t enforce US IP law outside of the US. RIM maintains that the alleged infringement occurs within their routing system that is located in Canada, therefore there is no infringement.

No wonder the Department of Justice has filed a brief. Here we have US courts attempting to enforce intellectual property law within Canada. At worst, this case represents an infringement on Canadian sovereignty; however, the DOJ is taking a more demure approach: “Canada is especially concerned that the uncertainty resulting from the panel's decision, with its potential for being applied in an inappropriately extraterritorial or discriminatory fashion, may have the further troubling effect of chilling innovation by Canadian companies operating in key industry sectors in Canada, particularly the high-technology sector.”

All of a sudden we see the borderless and global information economy held up at the borders. It seems that the old map-based geographic boundaries that separate that pink northern mass of the Dominion of Canada from the patchwork that is the Republic of the United States of America are also having a profound effect on the flow of information in North America.

Thinking back to some of my earlier posts concerning Genuity and CIBC, I have to wonder, where exactly are those BlackBerry messages that have caused so much trouble? Are they lurking on a Canadian server or an American server? At some point during their passage between sender and receiver did the various packets that make up those messages pass through American territory? Are the various packets protected by different sets of privacy laws: this packet, PIPEDA; that packet, USA Patriot Act; this packet, the Canadian Charter of Rights and Freedoms; that packet, Fourth Amendment of the US Constitution.

How exciting.

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