Repeat infringer requirements cause a flood of litigation over investigations and compliance
Matt Schruers, 2023 - President Computer & Communications Industry Association. Written Statement submitted to the Senate Judiciary Committee, “Back to School with the SHOP SAFE Act: Protecting Our Families from Unsafe Online Counterfeits” Senate Hearing, 10/3, https://www.judiciary.senate.gov/imo/media/doc/2023-10-03_-_testimony_-_schruers.pdf //DH
2. Repeat infringer policies are heavily service-dependent. Any 'repeat infringer' policies should be left flexible for each service to apply reasonably. Requiring termination of a third-party seller for "repeated use of a counterfeit mark," broadly defined as "three separate listings within one year," is onerous for businesses of all sizes, and draconian given the enormous volume of goods sold or offered for sale online. This provision could invite costly, time-consuming litigation or burdensome investigations over what is considered "mitigating circumstances" and decisions about whether to reinstate.
3. There are many other provisions in the bill that explicitly invite litigation over fact-intensive decisions, several times contemplating "any other factor considered relevant by a court". The provision on reinstating previously banned sellers includes a "verified decision" — how does a decision become verified? Another mentions "efforts the third-party seller takes to refute or resolve disputes once notified of a concern" — what constitutes "a concern" or its notification? How does one perform an "investigation" and how often must it be "periodically confirmed"?