Social media is a primary conduit for counterfeiting

These social media marketing tactics are helping to grow a "counterfeit culture." 18 This growing "counterfeit culture" increases the demand for counterfeit goods. 119 In some cases, the influencer unintentionally encourages others to purchase counterfeit goods by posting content including the legitimate item. 120 In other instances, influencers purposely encourage and benefit from others purchasing counterfeit goods by directly linking infringing items, oftentimes to online marketplaces like Amazon, and making a commission. 121

C. Policing Counterfeits on Social Media

On the liketoknow.it app, no button exists for a user to report suspicious content, and the only reference to reporting infringing content is in the Terms of Service, which provides an email address for direct complaints. 122 However, in the wake of Tiffany v. eBay, and under the belief that OSPs are liable for contributory trademark infringement only if they have "actual" knowledge, the lack of reporting mechanisms is unsurprising. 123 Yet the idea that social media sites do not have actual knowledge of trademark infringing items until someone reports a specific item is confusing for one reason-data.124

Social media sites aggregate data they collect from users' submissions and interactions for a variety of business functions, such as targeted advertising, informing preference algorithms, and improving the overall "user experience. "125 Social media sites know a user's age, name, location, what the user's face looks like, who the user has communicated with, how many times the user has logged into the application, and more. 126 A social media company knows this information by collecting and analyzing the data of each user, including but not limited to: user-submitted content, shares, likes, comments, mentions, website cookies, and metadata. 127

Metadata is "data that provide[s] information about data." 128 One of the most commonly known forms of metadata is the hashtag. 129 Hashtags connect a piece of content with a topic or theme.130 In the counterfeit context, a seller of a counterfeit good may post a picture of the good with the hashtag of the name of the authentic good or a hashtag signaling the good is inauthentic.131 Any user who searches the same hashtag will be able to locate the posting of a counterfeit good, follow the directions the picture includes, and purchase the item. 132 More often, the description describes these items as authentic items for resale, confusing less-savvy consumers who merely think they are receiving a bargain. 133

Even though it appears easy to identify sellers of counterfeit goods, the concept of hashtags underscores the primary argument of social media sites that not all users utilizing hashtags to sell items do so illegally. 134 The first-sale doctrine states that IP owners cannot enforce their rights after the initial sale of a legitimate good.1" Since the first-sale doctrine protects genuine resale of goods, OSPs argue they lack the ability to discern between legitimate sellers of genuine goods and illegitimate sellers of counterfeit goods without receiving notice of a specific infringing item.136 Therefore, according to these OSPs, they merely have "general knowledge" of infringing goods sold on their sites and are not liable under the current standard. 137