Exceptions invite litigation and loopholes
John H. Zacharia and Kari Kammel, 2020 - John H. Zacharia is former Assistant Deputy Chief for Litigation for the Computer Crime and Intellectual Property Section of the United States Department of Justice’s Criminal Division. Kari Kammel is the Assistant Director of Education and Outreach at the Center for AntiCounterfeiting and Product Protection at Michigan State University. “HOW CONGRESS PROPOSES TO PROTECT CONSUMERS FROM ONLINE COUNTERFEITS: The Good, the Bad, and the Ugly” September,
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First, Congress should harmonize these bills into one bill to make it easier for ecommerce platforms to comply with them. For instance, each of the bills requires e-commerce platforms to distinguish certain types goods or third-party sellers from others – whether its toys vs. non-toys (the SANTA Act), goods the implicate health and safety vs. goods that do not (the SHOP SAFE Act of 2020), or high-volume third-party sellers vs. low-volume third-party sellers (the INFORM Consumers Act). Asking e-commerce platforms to make these distinctions invites litigation over how they make these decisions instead of taking the shortest path to each bill’s goal of keeping counterfeit goods off e-commerce platforms. Sometimes the best solution is the simplest: enact one bill that requires e-commerce platforms to apply the same verification and due diligence requirements for all types of goods sold be all third-party sellers.