GORDON: Consumers could lose in patent case

OPINION:

On April 30, the Supreme Court will hear arguments in a long-running patent case between two companies that most people have never heard of but use every day. In Limelight Networks v. Akamai Technologies, the court will decide a legal issue that could upend the very same Internet and mobile services that these two little-known companies have long made work so well.

Limelight Networks, the company we founded in 2001, and Akamai Technologies, founded three years earlier, are the digital versions of FedEx and UPS. While the companies’ services overlap to some extent, Limelight focused from the beginning on music, video and games, while Akamai was originally founded to deliver Web pages. For years now, when you’ve listened to music on your computer, watched Netflix on your iPad or iPhone, or downloaded a new videogame to your Xbox, Limelight has made sure that your digital package arrived immediately and played smoothly. Akamai has done the same for Web pages and e-commerce. For almost as long as these two companies have been making the Internet work so well, however, Limelight and Akamai have also been fighting in court about patents.

At stake in this case are fundamental principles of patent law. How the nation’s highest court decides this case will determine whether innovative companies like Google, Facebook and Amazon can continue creating great new services that make our lives better, or whether a different set of rules with unpredictable consequences will stifle innovation, encourage litigation, and impose new limits on interactive services, now and in the future.

In 2006, Akamai sued Limelight for infringing three patents. The court quickly ruled that Limelight did not infringe two of the patents, but the third went to trial. Akamai argued that although Limelight itself did not infringe the patent, Limelight and its customers together did — and that Limelight should be held responsible. The court ruled against Akamai as a matter of law and a three-judge panel of the Federal Circuit Court of Appeals upheld that ruling. In August 2012, however, the full Court of Appeals, reviewing the Akamai-Limelight case en banc along with a second, similar case, voted 5-4 to reverse positions and change the law. As a result, any company can now be held liable for patent infringement based not just on its own actions, but also on the actions of its customers and users.

This is not a small thing. The mobile and Internet services Americans use billions of times each day are the result of multiple companies connecting their systems over the Internet, collaborating on standards and procedures, and solving problems together. Under the new rules, even routine activities such as explaining to users how to create an account or sign in to a service from a mobile phone can now subject a company to vastly expanded patent infringement risk.

Twitter hashtags are an excellent example. Hashtags are one of the most widely used features of Twitter. For example, half of this year’s Super Bowl ads included a related hashtag. Twitter did not invent hashtags or even help make them popular — Twitter’s users did. Under the new rules created by the lower court’s ruling, Twitter itself could now be held liable for patent infringement based on how companies and consumers use hashtags with its service.

When we founded Limelight in 2001, the Internet bubble had burst and the technology start-up world was in full meltdown. But we believed that consumers would rapidly upgrade from dial-up Internet to high-speed broadband and 3G, and would use these faster connections to listen to music, watch video and play games. We believed that this would require a new kind of infrastructure, one that would deliver digital media experiences comparable to traditional media. Limelight built an innovative network and became the digital delivery partner for many major media companies and hundreds of the most innovative startups and technology companies of the last 10 years, such as Facebook, Apple, Amazon and Microsoft Xbox. Today, Limelight holds more than 100 patents and our network consistently gets the highest performance ratings in the industry.

Everything we and our customers have built, plus the services of many other innovative companies, is now at risk because of this dramatic change in the law. Dozens of technology companies, the Electronic Frontier Foundation, and the U.S. government have joined Limelight in asking the Supreme Court to overturn this new rule, invented by the lower court. In amicus briefs, they outline the many ways innovation will suffer if companies can suddenly become liable for other parties’ actions.

Companies should be free to develop innovative services and technologies. Consumers should be free to use them in any creative way they can dream up. This is how we move forward at the speed of inspiration. It’s possible only if the rules come from Congress and are enforced, not changed, by the courts.

Michael Gordon, Nathan Raciborski, Bill Rinehart and Allan Kaplan founded Limelight Networks in 2001.