E-Commerce Neg - Michigan 2024 STARTER

Notes
The best arguments against the contributory liability trademark affirmative are:
--*the inflation DA (all work is in the inflation file) – this is by far the best argument
--the circular economy DA
--the data-sharing advantage CP in this file (the above two DAs are net benefits)
Other arguments in this case neg that could fit in a 1nc:
--topicality domestic (this argument is not 2nr material unless there are serious aff mistakes)
--the small seller PIC
You should avoid the ‘other’ section of the case negative -those cards apply against different plan mechanisms.
Case
Counterfeiting
1nc – counterfeiting exaggerated
Counterfeiting statistics are wildly inflated and include patent, copyright, and physical counterfeits
Matthew Schruers, 2023 - President Computer & Communications Industry Association “Back to School with the SHOP SAFE Act: Protecting Our Families from Unsafe Online Counterfeits” 10/3, Proquest Congressional, accessed via University of Michigan //DH
MATTHEW SCHRUERS: We're just talking about the scale of the problem. And I would note that all of these statistics that we're looking at are by their own terms, wildly inflated relative to the problem that we're talking about. First of all, many of them are the upper range and so we get a site of between X and Y. And Y is the top figure and then Y becomes the figure, so. We need to realize that -- that the outer bound is not the median figure.
Secondly, most of these figures apply and include copyright piracy, patent infringement. And -- and I'll be the first to acknowledge that infringement in foreign markets that have weak rule of law is a serious policy problem. That is not the problem that -- that we're talking about here. This bill is not going to do anything about pirated software in China.
It's not going to prevent patent infringement. It's -- it's not going to prevent the sale of -- a physical sale of a bootleg handbag on the street of Moscow, right? This is just about regulating online platforms. And those numbers are wildly over inclusive based on what we're talking about here. So I think we have to take these numbers with many grains of salt.
Status quo voluntary proactive enforcement solves now
Matt Schruers, 2023 - President Computer & Communications Industry Association. Written Statement submitted to the Senate Judiciary Committee, “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_-_testimony_-_schruers.pdf //DH
b. Services Are Already Combating Counterfeits
The digital sector shares the sponsors' goals of preventing unsafe counterfeit products from spreading online. Responsible services invest significant resources in protecting users from illegal or unsafe goods, enforcing their terms of service and existing law to combat unsafe products and protect consumers online. Many online intermediaries engage with brand owners extensively and have established programs that encourage information sharing to enable the identification of and enforcement against counterfeit and infringing goods.4 Industry also works with law enforcement to find and hold bad actors accountable and protect consumers.
Some major e-commerce providers voluntarily provide legal tools for trademark or brand owners. These brand registration programs allow the service to better utilize automated tools to identify and remove confirmed counterfeit products. Through enrollment, brand owners provide relevant information to the service about their products that better enables the service to proactively address counterfeits, and to streamline brand owners’ reporting process. In enforcing their strict prohibitions against counterfeiting, in many cases services will take more extensive action than merely removing content that is specifically reported to them, and are exploring ways to remove additional suspected counterfeit content on a proactive basis, with some already doing so 99% of the time.5 Some sites voluntarily publish data in their recurring transparency reports that detail removals on counterfeit goods, in addition to takedowns related to trademark claims.6
--xt counterfeiting exaggerated
Aff statistics are prior to the passage of the INFORM Act and include non-trademark forms of counterfeiting
Matt Schruers, 2023 - President Computer & Communications Industry Association. Written Statement submitted to the Senate Judiciary Committee, “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_-_testimony_-_schruers.pdf //DH
Fighting counterfeits is a shared mission and we advise Congress to regulate the retail market in its totality, including e-commerce, traditional brick-and-mortar, and small businesses, using a coherent regulatory approach that applies to everyone. However, American small businesses should not be expected to shoulder a disproportionate burden. Instead, the regulatory approach should also be proportional to the scale, and the scale of the problem is far from clear. A popular figure that is frequently invoked ($500 billion) is a four-year-old, worst-case scenario that sweeps in estimated copyright and patent infringement and precedes recent legislation, and is thus not useful for this policy discussion.
II. SHOP SAFE Is Not Needed
a. Give INFORM Time to Work
Like SHOP SAFE, INFORM aimed to reduce the sale of counterfeit, stolen, and dangerous consumer products with updated transparency requirements and verification of third-party sellers online along with contact information for consumers. INFORM was designed to help build more trust online by providing consumers additional transparency about third-party sellers online and because CCIA supports this goal we endorsed INFORM.
This law went into effect only three months ago on June 27, 2023. The recently reintroduced SHOP SAFE contains largely the same provisions that were proposed before INFORM passed. The 117th Congress simultaneously debated both bills and Congress ultimately reached consensus around INFORM, with broad cross-sectoral support from the private sector.
Advocacy for the newly reintroduced SHOP SAFE advances the same pre-INFORM figures, lacking any learnings or conclusions about the impact of INFORM. Rather than relying on outdated numbers, Congress should obtain updated information that takes into account this newly enacted and implemented law before rushing to pass new legislation that could destroy many legitimate small businesses operating online.
The best course of action is to allow INFORM time to work. We need to see and understand its impact in the real world to judge if additional legislative responses or course corrections are required.
Online platforms are incorporating new technology to detect counterfeiting now
Krista Chavez, 2024 – Senior Communications Manager at NetChoice “4 Ways Retailers Combat Counterfeiting” 5/9, https://netchoice.org/4-ways-retailers-combat-counterfeiting //DH
But retailers are working hard to counter these trends and protect their customers. Here’s four ways how:
Using AI to Spot Fakes
Retail marketplaces are deploying AI algorithms to recognize features like logo placement and trademarks that distinguish genuine products from counterfeit ones. When marketplaces can partner directly with rightsholders to identify key markers, it makes these AI algorithms even more powerful. AI programs also flag sellers who engage in counterfeiting. Some retail platforms use third-party software, like Corsearch, to help them find counterfeit goods. eBay purchased 3PM Shield, a provider of AI marketplace tools, to “enhance its ability to address suspicious or harmful seller behavior, and potentially problematic items.”
In 2023, Amazon identified and removed seven million counterfeit items from the supply chain. And the sneaker resale platform StockX stopped nearly $30 million of fake sneakers from trading on the platform.
At the same time, many luxury retailers like Mulberry and Prada are investing in digital IDs for their products to make identifying counterfeits easier. And LVMH and Cartier, along with others, have created the Aura Blockchain Consortium, which offers a certificate that guarantees the authenticity of luxury products.
Creating Databases of Bad Actors
The U.S. Department of Justice has created a database to track pharmaceutical, electronic and food counterfeiting crimes with open-source information. But retailers are also taking measures into their own hands. Etsy, for example, added a portal to report alleged copyright violations.
Retailers can flag bad actors in the supply chain by avoiding unknown manufacturers who seem overly eager to do business – stick with reputable manufacturers instead. Ship times can also be a red flag; counterfeit products, particularly those involved in drop shipping schemes, typically take much longer to ship than reputable retailers.
Taking Legal Action
Companies also aggressively pursue counterfeit goods manufacturers and sellers. In 2023, Bulgari sued several online stores for selling ‘Bvlgari’ products. The suit says the defendants sell counterfeit merchandise at e-commerce stores that are difficult to distinguish from the company’s official online presence. In 2022, Crocs won a default judgment against a footwear maker accused of selling counterfeit versions of Crocs’ signature plastic clogs.
Amazon’s Counterfeit Crimes Unit (CCU) detects, investigates and removes counterfeit items from the site and identifies bad actors as targets for prosecution all over the world. Since its launch in 2020, the unit has pursued more than 21,000 bad actors through litigation and criminal referrals to law enforcement, according to its 2024 Brand Protection Report.
In addition to the disposal of counterfeit products, in 2023, Amazon collaborated with brands and Chinese law enforcement, which led to more than 50 successful raid actions against manufacturers, suppliers, or upstream distributors of counterfeit products. This collaboration resulted in numerous criminal convictions.
Educating Consumers
Retailers are taking measures to: 1) help consumers identify potential counterfeit goods; and 2) educate consumers on the risks of purchasing counterfeit products. This includes engaging with media outlets, utilizing social media and creating reports, like Etsy’s transparency report.
According to IncoPro, millennials ages 25 to 34 are most at risk for these scams, being much more likely to buy fake goods unknowingly (41%) than those over 55 (18%). But education can help. According to Michigan State University, “the higher consumers’ awareness of the severity of counterfeit risks, the less likely they are to purchase counterfeits.”
For example, Amazon has partnered with the International Trademark Association and not-for-profit career student organization DECA to launch the Unreal Campaign Challenge, a campaign to make consumers better aware of the risks that counterfeit goods pose.
The counterfeit goods trade often supports organized crime, including gangs, drug cartels and terrorist organizations. Profits from counterfeit sales can fund other illegal activities, contributing to societal harm. Another byproduct is environmental: Counterfeit goods often bypass environmental regulations, leading to harmful production practices and waste disposal methods.
Worldwide trade in counterfeit products adds up to more than $500 billion each year. But retailers and online marketplaces are working hard and taking proactive steps to protect consumers and legitimate business services.
Most counterfeiting occurs in physical marketplaces, not online
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
A small percentage of bad actors misuse online marketplaces to offer counterfeit goods. But counterfeiting did not begin with the internet. Spurious trademarks are as old as trademarks themselves; by the early 1980s, long before the commercial internet, 30 percent of businesses responding to an ITC questionnaire reported that their goods had recently been subject to counterfeiting.4 Nor did counterfeiting through brick and mortar stores end with the growth of online services. Some of the most significant recent secondary liability trademark cases in the United States involved physical storefronts, not online companies.
Even as the sale of goods has moved increasingly online, physical markets continue to play the dominant role in facilitating the trade in counterfeit goods, including markets in China, Russia, and Vietnam, among other places. In 2019, the Organisation for Economic Co-operation and Development (“OECD”) released a report titled Illicit Trade: Trends in Trade in Counterfeit and Pirated Goods, which provides a comprehensive, “quantitative analysis of the value, scope and magnitude of world trade in counterfeit and pirated products.” The report demonstrates the complex 6 issues with tracking and identifying counterfeit goods. The problem is only compounded as “parties that engage in the trade of counterfeit and pirated products tend to ship infringing products via complex routes, with many intermediary points... to facilitate falsification of documents in ways that camouflage the original point of departure, establish distribution centers for counterfeit and pirated goods, and repackage or re-label goods.” This often makes it nearly 7 impossible for external experts, and even trained government officials, to spot counterfeit goods.
Efforts to stem the flow of counterfeit goods should not focus solely on online marketplaces. To protect consumers, any proposal must also take into account the dominant role that physical marketplaces continue to play, and should also be directed at the sources of counterfeits manufacturing.
The INFORM act is solving now- it just needs time
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
Online marketplaces and sellers have invested significant time and resources to implement the INFORM Consumers Act. It will take time to understand how INFORM impacts both marketplaces and especially small and medium-sized sellers. Lawmakers should give INFORM time to work before pushing legislation that is more burdensome and harmful to online sellers. Because of INFORM, covered “online marketplaces” have placed additional identification, verification, and disclosure requirements on sellers. This will help prevent bad actors from selling through online marketplaces and give stakeholders improved tools against repeat offenders. In addition, INFORM will help boost collaboration between digital services, industry stakeholders across the online ecosystem, and with law enforcement. INFORM will also help protect small business sellers who are running legitimate businesses online by helping to weed out bad actors and give consumers more confidence online.
1nc – no cyber impact
Cyber-attackers seek to avoid escalation and the US is resilient to attack
James Lewis, 2020 – Senior Vice President and Director, Strategic Technologies Program at the Center for Strategic and International Studies, “Dismissing Cyber Catastrophe” https://www.csis.org/analysis/dismissing-cyber-catastrophe //DH
More importantly, there are powerful strategic constraints on those who have the ability to launch catastrophe attacks. We have more than two decades of experience with the use of cyber techniques and operations for coercive and criminal purposes and have a clear understanding of motives, capabilities, and intentions. We can be guided by the methods of the Strategic Bombing Survey, which used interviews and observation (rather than hypotheses) to determine effect. These methods apply equally to cyberattacks. The conclusions we can draw from this are:
Nonstate actors and most states lack the capability to launch attacks that cause physical damage at any level, much less a catastrophe. There have been regular predictions every year for over a decade that nonstate actors will acquire these high-end cyber capabilities in two or three years in what has become a cycle of repetition. The monetary return is negligible, which dissuades the skilled cybercriminals (mostly Russian speaking) who might have the necessary skills. One mystery is why these groups have not been used as mercenaries, and this may reflect either a degree of control by the Russian state (if it has forbidden mercenary acts) or a degree of caution by criminals.
There is enough uncertainty among potential attackers about the United States’ ability to attribute that they are unwilling to risk massive retaliation in response to a catastrophic attack. (They are perfectly willing to take the risk of attribution for espionage and coercive cyber actions.)
No one has ever died from a cyberattack, and only a handful of these attacks have produced physical damage. A cyberattack is not a nuclear weapon, and it is intellectually lazy to equate them to nuclear weapons. Using a tactical nuclear weapon against an urban center would produce several hundred thousand casualties, while a strategic nuclear exchange would cause tens of millions of casualties and immense physical destruction. These are catastrophes that some hack cannot duplicate. The shadow of nuclear war distorts discussion of cyber warfare.
State use of cyber operations is consistent with their broad national strategies and interests. Their primary emphasis is on espionage and political coercion. The United States has opponents and is in conflict with them, but they have no interest in launching a catastrophic cyberattack since it would certainly produce an equally catastrophic retaliation. Their goal is to stay below the “use-of-force” threshold and undertake damaging cyber actions against the United States, not start a war.
This has implications for the discussion of inadvertent escalation, something that has also never occurred. The concern over escalation deserves a longer discussion, as there are both technological and strategic constraints that shape and limit risk in cyber operations, and the absence of inadvertent escalation suggests a high degree of control for cyber capabilities by advanced states. Attackers, particularly among the United States’ major opponents for whom cyber is just one of the tools for confrontation, seek to avoid actions that could trigger escalation.
The United States has two opponents (China and Russia) who are capable of damaging cyberattacks. Russia has demonstrated its attack skills on the Ukrainian power grid, but neither Russia nor China would be well served by a similar attack on the United States. Iran is improving and may reach the point where it could use cyberattacks to cause major damage, but it would only do so when it has decided to engage in a major armed conflict with the United States. Iran might attack targets outside the United States and its allies with less risk and continues to experiment with cyberattacks against Israeli critical infrastructure. North Korea has not yet developed this kind of capability.
One major failing of catastrophe scenarios is that they discount the robustness and resilience of modern economies. These economies present multiple targets and configurations; they are harder to damage through cyberattack than

Preview shortened. Download the file for the full document.