Definitions
SHOP SAFE Act – a lot of cards, especially a lot of negative cards, refer to this. It’s a law that has been proposed in Congress to essentially do the plan legislatively (it won’t pass). There may be new House hearings on it over the summer, so if you’re interested in this affirmative, it’s worth your time to follow the hearings. There are a lot of things about SHOP SAFE that don’t apply to this aff – but those cards are not in the negative file. The cards that do mention SHOP SAFE do apply, because they are about strengthening contributory liability, which is the aff. The aff is slightly different from the standard in SHOP SAFE in that it will claim that ‘constructive knowledge’ is a more flexible test to apply contributory liability. But for the most part, the negative evidence is relevant.
Contributory liability – this is a form of secondary liability that holds a third party liable for counterfeiting if they knew about trademark infringement on their platform and did nothing to stop it. Contributory liability applies to trademark counterfeiting now, but it depends on the standard of knowledge that courts apply to determine whether an online platform ‘knew’ infringement was occurring.
Specific knowledge – also called “contemporary knowledge” or “actual knowledge”. This is the current standard for determining contributory trademark liability. In the 2nd Circuit case Tiffany v. eBay (2010), the court held that eBay’s liability for counterfeit Tiffany products sold on its site required eBay to remove counterfeit listings that were reported to it, but that eBay had no further obligation to police its website, because it lacked specific knowledge of other counterfeiters.
Constructive knowledge – also called “reason to know” – this is a standard for determining contributory liability developed in the case Inwood v. Ives (1982). Ives said that if a (brick and mortar) marketplace had reason to suspect counterfeiting was occurring, whether through multiple notices, widespread reports, or third-party assessments, and the marketplace did not take reasonable precautions, then that marketplace is contributorily liable even if did not know about a specific instance of counterfeiting. Essentially, constructive knowledge is a standard that says you “should have known” illegal activity was taking place, and the reason you didn’t know was that you were negligent.
Willful blindness – this is a judicial doctrine that says if a marketplace lacked specific knowledge solely because they refused to monitor or investigate, then they are liable.
Safe harbor – this means that if an online platform takes proactive enforcement measures, then they are no longer subject to liability. The Bernstein evidence indirectly references this in the line: “marketplace owners may discharge their duty by taking anti-counterfeiting measures.” Most safe harbor provisions require specific steps determined by legislation (the Digital Millenium Copyright Act has a copyright safe harbor provision for online platforms based on notice and takedown, for example). The 1ac evidence here says that courts will determine that “reasonable precautions” might be sufficient to discharge liability. Both Dong and Bernstein assert ‘reasonable precautions’ could be satisfied by stronger monitoring and banning repeat infringers, but what is ‘reasonable’ is fact-specific and depends upon the context of a particular online platform.