Increasing criminal enforcement is comparatively better than changing liability
Jonathan Berroya, 2021 - Senior Vice President and General Counsel, Internet Association. Testimony before the Subcommittee On Courts, Intellectual Property, and The Internet Judiciary Committee U.S. House of Representatives. The SHOP SAFE Act: Stemming the Rising Tide of Unsafe Counterfeit Products Online. 5/27, https://docs.house.gov/meetings/JU/JU03/20210527/112713/HHRG-117-JU03-Wstate-BerroyaJ-20210527.pdf //DH
Changing the secondary liability standards also does not address the true cause of counterfeiting—the actual infringer. Although several U.S. agencies have the authority to investigate criminal counterfeiting (as noted above), only 229 counterfeiters were referred to the U.S. Sentencing Commission in the 2019 fiscal year. Indeed, the U.S. Sentencing 24 25 Commission reported that counterfeit offenses decreased by 37.4 percent between the Fiscal Year 2015 and Fiscal Year 2019. But law enforcement agencies—not online services—have the expertise and mandate to investigate criminal counterfeiting. Accordingly, IA respectfully suggests that it might be more impactful to focus legislative efforts on increasing resources allocated to agencies that are charged with investigating and enforcing existing laws against the counterfeiters themselves (an effort that IA’s members are already helping with) than to change the standards for secondary liability.