DMCA safe harbor solves the problems of SHOP SAFE
Matt Schruers, 2023 - President Computer & Communications Industry Association. Responses to questions from Senator Tillis. “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_-_qfr_responses_-_schruers.pdf //DH
The legislation places prescriptive and inflexible requirements on sellers and lacks a true safe harbor, instead requiring sellers to meet specified conditions or they are held liable. These conditions are not based on an investigation or understanding of current anticounterfeiting industry practices by sellers.
The lack of a true safe harbor will incentivize endless litigation and would lead large brands to sue both online services and sellers of all sizes including small businesses with only a few employees. The Digital Millennium Copyright Act (DMCA) provides clear steps in the event of a copyright takedown notice and if the online service provider complies, there is little threat of litigation. Conversely, under SHOP SAFE sites would have to affirmatively prove they reasonably implemented the requirements. While SHOP SAFE allows a reasonableness defense, such an expensive defense would require in each case full discovery and fact finding by a jury.