Turn - Mandating contributory liability undermines cooperation and makes anti-counterfeiting efforts worse

IV. REMOVING PROTECTIONS FOR ONLINE SERVICE PROVIDERSIS NOT THE SOLUTION TO THE COUNTERFEITING PROBLEM.

Changing the secondary liability standards, as SHOP Safe does, will not address the true cause of counterfeiting—the actual infringer. A company that delivers the products consumers order from third parties may have no way to know whether the third-party seller of those products, in turn, bought them from a legitimate supplier. Cloud storage companies have no way to tell whether documents stored on their sites violate a third party’s trademark rights. But all could be subject to incredibly onerous obligations if this overbroad legislation becomes law.

Instituting a strict legislative regime could backfire. Currently, online services are working cooperatively with rights holders and the government to stop counterfeiting; but in the face of a legislative mandate, companies may hesitate to do anything other than what the law requires to avoid the risk of future liability. For example, companies may not explore alternative counterfeiting solutions, even if those solutions would ultimately be more effective at getting counterfeits off of the internet than the legislative framework. That would help nobody—not the brand owner, not the online service, and not the consumer. People who commit intellectual property crimes are adept at adjusting their sales and distribution methods to evade detection as intellectual property enforcement techniques improve. Because enforcement can be such a cat-and-mouse endeavor, flexibility and good faith collaboration, not legislative mandates, are most likely paths to effective solutions.