Contributory liability subjects platforms to constant lawsuits and witchhunts for damages

Inwood Standard” Indiana Law Journal, Iss. 2, Article 9, https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=11200&context=ilj //DH

But the Tiffany standard is more than just Inwood for services. In addition to what it takes from Inwood, Tiffany creates a more defined and practical gray area within which courts can apply the knowledge requirement.155 Importantly, the Tiffany standard demands more than general knowledge but less than specific knowledge.156 It also leaves open alternative knowledge theories, such as willful blindness. The Second Circuit stated: "For contributory trademark infringement liability to lie, a service provider must have more than a general knowledge or reason to know that its service is being used to sell counterfeit goods. Some contemporary knowledge of which particular listings are infringing or will infringe in the future is necessary."157 This holding keeps with Inwood's narrow standard but also aligns with the Supreme Court's subsequent interpretations of Inwood in other cases.158 It rightly rejects general knowledge. If general knowledge were enough, online service providers would constantly be embroiled in contributory infringement actions merely because of their business model. In Tiffany, eBay conceded that it knew generally that there were counterfeit Tiffany goods on its site.159 With a case so easy to prove—all a plaintiff would need to show is that counterfeiting occurred somewhere on the site without having to provide an example—online service providers would be subject to witch hunts for damages simply because direct infringers chose the provider's site as a sales platform. Moreover, "some contemporary knowledge" is not as narrow as specific knowledge.160 This is a kinder standard to the plaintiff, as it is not as stringent and leaves open the window of circumstantial evidence. Additionally, contemporary knowledge ensures that the online service provider is not being sued merely for its business model, but instead because there were genuine infringing acts occurring that the provider knew of and should have stopped.