Closing the Digital Divide: Washington’s Paramount Duty to Fund Educational Technology

By: Alec Dugan

“It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex.” Those 34 words of Article IX, Section 1 of the Washington Constitution are the foundation of our state’s guarantee to K-12 education. School funding has been a longstanding issue for the state legislature, but in the years since the Washington State Supreme Court’s 2012 McCleary decision, the state has increased funding to meet its constitutional obligation. However, COVID-19 continues to ravage communities, and the state may still be falling short of its paramount duty to provide education for the children of Washington. As schools have shut down and shifted online, the economic and racial disparities in our state’s education system are more apparent than ever. Technology is no longer a luxury for wealthy districts but an essential component of basic education. It is therefore the duty of the state, not the districts, to fund educational technology.

Washington’s Paramount Duty

Although Washington’s “paramount duty” clause can be traced back to the state’s founding in 1889, it did not come to the forefront of state politics until the mid-1970s. In Seattle School District v. State, the Washington State Supreme Court interpreted the “paramount duty” clause to create an absolute right for the children of Washington to receive an “amply funded education.” Importantly, this right is to be funded by the state, not by the local school districts. Since then, education funding has remained a difficult topic in Washington politics. The Washington Supreme Court recently found in McCleary that the state had again failed its duty to amply fund public education when it defined basic education in a 2009 education reform bill but continued to rely on local levies for funding. Although the court ruled in 2018 that the state had finally met its obligation to fund public schools, educators have continued to project budget shortfalls.

That was before the pandemic, and the most recent estimates project state revenue will be $3.3 billion less over the next four years than it would have been without the pandemic. While experts predict that education expenditures are unlikely to backslide due to their constitutional necessity, legislators expect there to be little increase in future spending. This may have been acceptable before the pandemic, The Washington State Supreme Court approved the legislature’s funding plan, but the pandemic has changed the way we teach. Although schools have begun to return to in-person learning, a future of education predicated on technology and remote instruction challenges the adequacy of present funding.

In the Shadow of the Pandemic

The gap in access to computers and the internet, the “digital divide,” has only become more important during the pandemic. A recent survey found that 64% of districts with a large number of low-income students expected technology access to be a major issue, compared to only 21% of districts with a small number of low-income students. As for racial disparities, a study of parents with children in remote learning found that 15.6% of black parents reported inadequate access to technology compared to 8% of white parents. Making matters worse, disadvantaged students are more likely than others to be in remote learning.

To remedy this problem, school districts and the state have purchased computers and subsidized internet for students, with much of the money coming from federal stimulus funds. In addition, Governor Jay Inslee has proposed spending $79 million in the 2021-23 budget to support residential access to the internet, but there is no guarantee the legislature will adopt the governor’s proposal, and the federal funds are only temporary. Still, the pandemic is expected to have a long-lasting effect on our educational system. In particular, the adoption of education technology has exploded since the start of the pandemic, with Washington-based company Blackboard reporting a 3,600% increase in users of its ‘Collaborate’ virtual classroom tool in March 2020. With so many students becoming accustomed to eLearning, technology will play a vital role in the future of K-12 education.

Still, access to technology remains disparate between school districts. After the McCleary decision, the state capped local levy collection in a so-called ‘levy swap,’ increasing state property taxes that fund basic education while reducing voter-approved levies. Beginning in 2019, local school levies could only be used for “enrichment,” not the funding of basic education. Despite a 2018 adoption of educational technology standards by the state Superintendent, one of the more popular “enrichment” items has been technology. In a 2018 editorial, 15 of 24 King and Snohomish county districts surveyed by The Seattle Times had technology levies on the ballot. Although the state funding formula incorporates technology as a component of the per-student allocation, at roughly $165 per-student it would seem as though the state has fallen back to its old ways of identifying basic educational needs and relying on school districts to fund them.

In a post-pandemic world technology plays a much larger role in education than merely enrichment. When schools return to in-person instruction we can likely expect some of the changes made during the pandemic, like online homework submission, to be retained. In such a technology-dependent society, simply providing printed alternatives is not a sufficient substitute. This is particularly true when at the heart of McCleary was the goal to reduce educational inequity. While the minimum technological requirement is unclear, the state cannot rely on local districts to bridge the divide. Rather, it has become the obligation of the state to fund educational technology as part of basic education. In doing so, the state may move closer to upholding its paramount duty to provide for basic education to all children of Washington, not just those who can afford it.

Faceprints: How Clearview AI Uses Your Social Media Posts to Sell Your Identity Without Your Knowledge

By: Alex Coplan

Clearview AI is a small company that has constructed perhaps the largest international facial recognition database ever created. Clearview’s AI program calculates unique indicators about our bodies—like the distance between our eyes and the shapes of our cheekbones—to create a “faceprint.” Clearview scrubs this data from social media posts, online videos, and more, amassing billions of faceprints without our consent. Similar to DNA or fingerprint information, law enforcement and other entities can use Clearview’s faceprints to identify us.

Companies should not be able to collect and store our biometric data without our consent. Last year, the American Civil Liberties Union (ACLU) sued Clearview for violating Illinois’ Biometric Information Privacy Act (BIPA). BIPA prohibits capturing people’s biometric information—such as DNA, fingerprints, or faceprints—without their consent. By using Illinois’ BIPA and California’s Consumer Privacy Act (CCPA), states can use their own biometric privacy laws to protect their citizens while they wait for the federal government to create uniform standards.

Clearview is unlike other facial recognition technologies used by authorities, which pull their photos from drivers licenses and mugshot photos.  Instead, Clearview allows its user to take a photo of someone, upload it, and then see public photos of that person, along with links to where the photos were taken. Fortunately, Clearview stopped selling its product to private companies and instead only provides use to law enforcement agencies. There are at least 2,400 United States law enforcement agencies that use Clearview.

Make no mistake, there are some benefits to Clearview’s technology. Clearview has helped law enforcement solve shoplifting, identy theft, credit card fraud, murder, and child exploitation cases. It was even used to positively identify some rioters that attacked the U.S. Capitol this January.

Despite the benefits of a program like Clearview, the dangers are real. The capture and storage of faceprints leaves people vulnerable to data breaches and identity theft. The ACLU’s complaint alleges that Clearview’s technology “can invasively identify everyone at a protest, a political rally, a house of worship, a domestic violence shelter, an Alcoholics Anonymous meeting, and more.” Further, United States Senator Ed Markey summarized the complications surrounding a future Clearview data breach by asserting that “if your password gets breached, you can change your password. If your credit card number gets breached, you can cancel your card. But you can’t change biometric information like your facial characteristics if a company like Clearview fails to keep that data secure.”

In defense of widespread criticism, Clearview argues it has a First Amendment right to disseminate information that is publicly available online. Clearview claims it gathers only publicly-available photos and then uses them in a search engine that expresses Clearview’s opinion on who is in those photos. Current constitutional protections may hold that Clearview is right. Clearview may freely discuss and circulate images it finds online without violating the First Amendment. Additionally, Fourth Amendment privacy protections are not currently violated by the use of facial recognition programs on publicly available information.

Instead, Clearview violates state biometric privacy laws that prohibit private companies from capturing our faceprints without notice and consent. Currently, there is no comprehensive federal privacy law governing the collection, use, and sale of biometric data by private companies. Therefore, states are left to determine how they want to handle the situation. Illinois, through BIPA, may find the use of Clearview illegal, absent an individual’s consent. Another class action BIPA suit settled this year against Facebook, in which the social media giant will pay out approximately $550 million for its unlawful use of their facial recognition technology. Facebook sparked that lawsuit when it’s initial version of it’s Tag Suggestion tool captured faces from users, using and storing that biometric data without individual consent. Through photos published by users, Facebook’s Tag Suggestion tool scanned faces and gave suggestions about who the person in the photo might be.

Adopted in 2008, BIPA remains one of the strictest biometric data laws in the country. BIPA is an informed consent statute that protects individuals’ privacy by making it unlawful for a company to, among other things, “collect, capture, purchase, receive through trade, or otherwise obtain a person’s or a customer’s biometric identifiers” unless it first provides notice that biometric information is being stored, and informs the subject of the purpose and length of term for which the information is being collected. Further, the statute protects Illinois citizens from sale, release, trade, or profitization of their biometric information by private companies.

By failing to inform people how, when, and to what extent their biometric data will be used, Clearview has failed to obtain the necessary consent of the individuals who appear in the photos they collect. Combined with the recent ruling against Facebook, the class action suit against Clearview has a good chance of success.

To mitigate the issue, Clearview has cancelled all accounts belonging to any entity in Illinois. However, they argue they should not face an injunction prohibiting them from using current or past biometric data from Illinois residents. Pursuant to Illinois’ BIPA, they will likely have a tough time overcoming the injunction.

The fight to protect against the dangers of face surveillance technology is ongoing. Across the nation, the ACLU and other advocacy groups have been successful in implementing bans on police use of facial recognition technology. Until Congress regulates the growing popularity of these softwares, states and private entities will be left to defend themselves against the intrusions on our privacy. In the meantime, states should use Illinois’ BIPA as a model for their own biometric privacy regulations.

Keeping Cameras (and Cat Filters) Out of the Supreme Court

Photo by Anna Shvets on Pexels.com

By: Moses Meracov

As the pandemic rages on, courts around the U.S are resorting to online video conference platforms to proceed with hearings. Although they are sometimes marred with glitches and technical difficulties, a prominent example being a certain Texas lawyer being unable to turn off a cat filter, online video meetings are virtually the next best thing in lieu of meeting in person. Nevertheless, the Supreme Court recently refused to resort to Zoom and instead opted for archaic telephone conferences.  Although many law students and SCOTUS fans may feel existential dread for not being able to see Chief Justice Roberts as a wide-eyed kitten, the Supreme Court supposedly has good reason for limiting remote conferences to the telephone.

As a practical matter, cameras are prohibited for use in the Supreme Court by Federal Rule 53. The rule establishes that “[e]xcept as otherwise provided by a statute or [certain] rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” State courts are not bound by this rule and many Federal courts have recently skirted around the rule using authority provided by the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”)(see Sec. 15002). The CARES act exception, however, only truly applies to criminal proceedings. As a political matter, Retired Supreme Court Justice David Souter famously stated that “[t]he day you see a camera come into [the Supreme Court], it’s going to roll over my dead body.” Justice Souter’s explicit aversion to allowing media broadcast videos of court proceedings is a sentiment shared by many Justices who feel that adding cameras to the courtroom would jeopardize the Court as an institution.

In an age where virtually all information is produced, consumed, and distributed instantaneously, it is difficult to believe that the American public lacks access to videos of Supreme Court proceedings. However, there are distinct reasons for the Supreme Court’s refusal to succumb to the pressures of media in the New Media age. Opponents of in-court cameras generally argue that allowing cameras into the courtroom would (1) magnify public misconception and distort the Supreme Court, (2) lead to virulent political grandstanding, and (3) erode the effectiveness of an institution that has worked fine without it. These arguments and their related suppositions are expanded below.

First, permitting video-taking of Supreme Court proceedings might lead to unneeded public misconception. For example, consider Justice Clarence Thomas’ notorious silence during oral arguments. The public may misconstrue this silence as intellectual inability and/or laziness on the part of Justice Thomas to deliberate judicial issues. In reality, Justice Thomas likely works hours outside the oral argument portion picking apart written briefs, discussing cases with his colleagues in the conference room, working with legal aides, and understanding necessary case precedents. That small issue may be a microcosm of how the public would perceive the Supreme Court in general. Cameras will not follow Justices into the private conference room or their offices, where most of the work is done. Since the cameras would only be present during oral proceedings, the public may assume that the oral argument is the most important process in deciding cases since it is the only segment that will be televised. Holistically, these misconceptions may work to lower the stature and institutional perception of the Supreme Court.  

Second, televised oral proceedings, as seen with practically any televised political process, may serve as a catalyst to widespread grandstanding, subsequently distorting the decision-making process. Nightly news programs could constantly air short clips, as they already do, which would misrepresent arguments and cases. Understanding that, lawyers and even Justices are more likely to use the oral argument as a medium from which to spew philosophies or magnificent speeches rather than discuss the complexities of certain statutes. Furthermore, many lawyers will take the opportunity to manipulate public perception in order to gain favor for their side. Plus, aspiring super lawyers and those seeking more business may use the oral argument as a soapbox from which they can attract more clients, instead of helping Supreme Court Justices understand their positions. Thus, cameras would possibly hamper or even suppress proper justice and deliberation from taking place. 

Third, the Supreme Court has functioned effectively without the need for cameras for 232 years as of 2021.  In looking at this issue, the old adage comes to mind: “If it’s not broken, don’t fix it”. The adoption of cameras into the courtroom does not solve any real problem, rather it is a perceived (by some) improvement. That improvement, however, may come with a host of potential problems.

A fair counter argument in authorizing cameras into the Supreme Court is that cameras would function to make the Court as transparent as possible. Transparency exists in almost all of America’s political institutions. Why should the Court be exempt? After all, cameras are allowed in Congress, arguably the central power in our government. Nevertheless, camera-opponents point out that the argument is a misunderstanding of how the Court already functions. Transcripts and audio recordings of the Court are already publicly distributed. Court Briefs are available online for everyone to read. Proceedings are open to the public and for news agencies to observe. In short, the Supreme Court is considerably transparent. Adding in cameras, opponents generally argue, would do nothing but turn the judicial process into visual entertainment. Why cloud widely available, substantial information with a layer of useless theatrics?   

Although these arguments by camera-opponents may be theoretically compelling, and the Supreme Court thereby holds a no-camera principle, our exigent times have shown that their claims may not bear muster in reality. For example, there have been virtually no issues of grandstanding in state and circuit courts that have adopted online video conferencing. It may only be a matter of time before the Supreme Court and our legislative bodies realize that holding telephone-only hearings is needlessly difficult as compared to a video meeting. In light of the times and in respect to the Supreme Court’s desires, the ultimate solution for the Justices would be online video conferences to hear oral arguments with audio-only recordings/livestreams for the rest of the public.

It’s Fun to Strengthen the D-M-C-A

By: Joanna Mrsich

Imagine you are a video game developer or publisher excited about the release of a new game, but to your dismay, you find that popular streamers have uploaded extensive videos of your product to devices like Twitch and YouTube without obtaining your permission. You might find yourself asking “why don’t these platforms do more to protect my intellectual property?” And you just might be right in thinking that they should.

My previous blog post discussed the world of video game streaming and the role of copyright law in it. It also analyzed whether infringement exists in this realm and found that it is a prevalent, but thus far unenforced, issue. This post will focus on the role of platforms and whether the Digital Millennium Copyright Act (DMCA) serves its original intended purpose despite society becoming increasingly technology based. It is important to question whether streaming platforms are able to shirk their responsibilities too easily and if they should have a greater role in protecting their users’ copyrighted works.

Does the DMCA Play Favorites? Copyright Owners Versus Online Service Providers

Last year, the U.S. Copyright Office published a comprehensive U.S. government study and report to assist Congress in evaluating potential updates to the Copyright Act—specifically section 512—given the significant social and technological advancements since its creation. In over twenty years, advancements in technology and business models involved in copyright have evolved and expanded in ways that the DMCA could not foresee in 1998. These advancements and shifts have led the U.S. Copyright Office to conclude that the Digital Millennium Copyright Act is tilted in favor of tech companies rather than copyright owners.  The Copyright Office now suggests that Congress make changes to favor copyright owners. Moreover, the Report addresses whether section 512 is effectively balancing the needs of online service providers (OSPs) with those of creators.

The Copyright Office also discovered a variety of evidence indicating that online piracy remains pervasive despite §512. In a 2013 study by the MPAA, “432 million unique users worldwide explicitly sought infringing content during one month alone.” The MPAA also cited data from 2015 indicating that online sites well known as sources of infringing content encounter millions of unique visitors per month. The advancement in technology over the last seven years since the aforementioned study is nearly immeasurable. The number of global social media users alone has increased from 970 million people in 2010 to 2.96 billion people in 2020. The Report even cites the Association of American Publishers (AAP) in stating that “an increase in the volume does not speak to the effectiveness of the notice-and-takedown process…[given that]…the very same infringing content is easily and quickly re-uploaded to the same site after removals pursuant to previous notifications.” The Copyright Office explicitly states that the divergence in assessments between §512 by OSPs and copyright owners indicates that the DMCA is not achieving Congress’ intended balance. Consequently, the Report singles out areas where improvement is possible and would be beneficial to protect against copyright infringement.

DMCA Knowledge Requirement

One issue the Copyright Office Report notes is that legal precedent based on the current statute has fostered an environment in which companies can deny “knowledge” of infringing content. Additionally, courts have struggled to articulate the appropriate relationship between section 512’s intent to avoid imposing a duty to monitor and the knowledge requirement. A second issue involving the knowledge requirement is that courts have adopted a standard for willful blindness that differs from common law. The adopted standard requires deliberate avoidance of specific incidences of infringement versus a general avoidance of acts of infringement. This Report notes that this modified standard appears to be in tension with Congress’ original intent and scope of willful blindness. Moreover, while OSPs must take action under §512(c) and (d) when they have “actual knowledge” of infringement and are unable to ignore claims, §512 also explicitly states that OSPs have no duty to “monitor its service or affirmatively seek facts indicating infringing activity, except to the extent consistent with a standard technical measure.”

While OSPs argue they are already doing their part to limit infringing material and that strengthening DMCA provisions would limit their innovation and progress, many owners of copyrighted works believe a better balance can be struck. One of the principles used to guide the Study was the notion that internet policy in the twenty-first century cannot be one-size-fits-all.

DMCA Repeat Infringer Policy

The Report further suggests that Congress reevaluate the policy surrounding repeat infringers. While the DMCA currently permits OSPs to terminate accounts of repeat infringers, it does not have clear or uniform standards. Under §512(i)—which defines the conditions for eligibility—a limitation on liability shall apply to a service provider only if they have adopted and reasonably implemented a policy that provides for termination in appropriate circumstances. Moreover, §512(i) requires that service providers “…inform subscribers and account holders of the service provider’s system or network….” In conducting the study, the Copyright Office found that many rightsholders felt courts had shifted the burden to the rightsholder to establish that an OSP was in violation of the requirements in §512(i)(1)(A) by not adopting or reasonably implementing a repeat infringer policy. Additionally, the Report notes that rightsholders were concerned that infringing users could simply create new accounts and avoid culpability under the OSP policy.

Providing such standards could benefit OSPs’ enforcement mechanisms and help them be more proactive in preventing future or repeat copyright infringement from operating on their platforms. The Copyright Office suggested that policies should not require a repeat infringer to have been found liable in court—codifying a Fourth Circuit ruling—and that Congress require a written policy governing repeat infringement from all content providers—overturning a Ninth Circuit decision—so that users are definitively informed of the code of conduct. While the courts have articulated various tests to identify what is required under §512(i)(1)(A)—such as two tests from the Ninth Circuit used to assess whether OSP has fulfilled their obligations—it would be beneficial to further define what constitutes a “repeat infringer,” an adopted policy, and minimum requirements that satisfy “reasonable implementation.”

Conclusion

While the Report does not recommend any direct or wholesale changes to section 215, it identifies critical areas where Congress should reevaluate if the intent and action the DMCA was intended to provide is not being met. These potential reevaluations would aid OSPs, especially streaming platforms, in becoming proactive bodies that help protect copyrighted works from being infringed. Without updating and adapting the DMCA to modern times, it is likely copyright owners will continue to suffer the brunt of the antiquated DMCA’s fallout. Despite Congress’ original intent to provide OSPs with greater certainty regarding their legal exposure, while simultaneously providing copyright owners with assurance of protection, the advancements of technology and the way people interact with it seem to require a more robust form of the DMCA’s §512. As the Copyright Office’s Report addresses, the status quo arguably fails in achieving the level of protection copyright owners deserve from OSPs. As the world evolves, so should the DMCA.

The Shop Safe Act: A Bill to Prevent Counterfeit Medications and Fake Louis Vuitton Bags

By: Kelsey Cloud

Comprising 21.3 percent of total retail sales in the United States, e-commerce, or the buying and selling of products and services over the Internet, signifies a paradigm shift away from traditional brick and mortar stores and toward stores in the digital landscape. By eliminating travel time, reducing cost, and allowing buyers to make purchases at any time of the day, e-commerce enables consumers to make cheap and efficient purchases. However, e-commerce also provides dishonest sellers with a lucrative playing field to sell their counterfeit goods. Every day, approximately $1 billion in counterfeit goods are sold online, and online counterfeit goods make up more than 3 percent of all global trade. By escaping strict authentication regulations, illicit goods such as medications with lethal ingredients threaten public health and safety, as well as infringe the intellectual property rights of legitimate American businesses. To combat counterfeiting, the Shop Safe Act strives to impose necessary incentives to protect consumers from counterfeit products by imposing contributory trademark liability on e-commerce platforms for their third-party sellers’ counterfeit goods. If enacted, the Shop Safe Act would amend the Trademark Act of 1946 to hold these marketplaces liable unless they take certain measures to tackle the gaps in their systems and stop counterfeit sales.

How Counterfeiters Exploit Online Consumers

Historically, many counterfeit products were distributed at flea markets or from trunks of cars, where counterfeiters enticed naive consumers with stands filled with fake Gucci purses and Rolex watches. Now, counterfeit goods can be sold across the globe on websites visited by hundreds of millions of consumers. For counterfeiters, e-commerce has driven down barriers to entry in the retail market, reduced production costs, and provided an air of legitimacy by listing goods on well-known platforms.

Through selling their products on legitimate e-commerce sites, such as Amazon or eBay, counterfeiters move out of underground markets and eradicate consumer red flags such as low quality packaging or suspicious seller locations. Online counterfeiters can easily misrepresent products by uploading photographs of authentic goods while selling counterfeit versions. Reputable platforms such as Amazon are flooded with fake reviews that mislead consumers into thinking the product is trustworthy.

Harm to Consumers, Businesses, and Intellectual Property

The industry sectors most commonly affected by intellectual property theft are manufacturing, software, consumer goods, and biotechnology, including pharmaceuticals. For example, illicit prescription opioid medications, such as Oxycontin, are commonly produced by counterfeiters by diluting an authentic pill with deadly narcotics, such as fentanyl. Counterfeit medications commonly contain carcinogenic and allergenic ingredients, counterfeit lithium-ion batteries pose significant risk of exploding, and counterfeit airbags can cause severe malfunctions such as non-deployment.

Aside from the substantial risks to the health and safety of consumers, counterfeit goods threaten the profits, reputation, and intellectual property rights of legitimate businesses. The sale of counterfeit goods leads to billions per year in lost revenue for U.S. businesses and dislocates hundreds of thousands of legitimate jobs. Not only do trademark owners invest critical resources into maintaining their brands, but their success often hinges on consumers associating their brands with high quality products. Counterfeit products often damage the goodwill associated with the brand and disincentivize business owners from investing resources into developing their brands. By stealing trademarks, trade secrets, and other forms of intellectual property, counterfeiters minimize the need for research and development expenditures and gain an unfair advantage over legitimate businesses.

Policing Counterfeiters: A Game of Whack-a-Mole

Current anti-counterfeiting laws in the United States attach civil and criminal liability to manufacturers and distributors of counterfeit trademarks who use the mark in connection with the sale or distribution of goods or services. However, policing intellectual property theft by counterfeiters has proven to be costly, resource-intensive, and overall ineffective. Billions of mail shipments sent annually make detection and enforcement incredibly difficult, and only a small fraction are actually inspected. Platforms such as Facebook have inbuilt e-commerce functionality that allows sellers to conspicuously message buyers directly and reduce the risk of getting caught. Additionally, foreign sellers of illicit goods are often exposed to relatively low risks of criminal prosecution or civil liability under current law enforcement.

Currently, in order for e-commerce platforms to be held contributorily liable for trademark infringement claims against third-party sellers, the platforms must know or have reason to know of specific instances of infringement and fail to act. For example, in Tiffany v eBay, Tiffany & Co. sued eBay after filing thousands of take-down notices with eBay for counterfeit jewelry products, claiming that eBay had knowledge of sellers infringing Tiffany’s mark yet continued allowing infringing sellers on their website. However, eBay was not liable for contributory infringement because they had only general knowledge of widespread infringement and took immediate action to prevent sales of the infringing products whenever they had specific knowledge of infringement. Since it is difficult to prove specific knowledge of counterfeit sales, brand owners like Tiffany & Co. bear most of the burden of policing the platforms.

The Shop Safe Act Gives E-Commerce Sites an Ultimatum

The Shop Safe Act, introduced in Congress in March 2020, seeks to shift the burden to e-commerce platforms and proposes to establish contributory trademark liability for platforms like eBay unless they demonstrate that they took certain reasonable measures to prevent infringement. The Act outlines a list of 10 requirements that e-commerce platforms must comply with in order to absolve themselves from liability, including vetting sellers to ensure their legitimacy, removing counterfeit listings, and ensuring the platform took reasonable steps to prevent any alleged infringement. The Act creates a safe harbor for platforms that take the 10 reasonable measures and incentivizes the platforms to strengthen their security and enforcement measures against counterfeiters.

For major online retailers such as Amazon, vetting everything posted by third-parties would be extremely time consuming, meticulous, and burdensome. With thousands of new listings added every day, major platforms like eBay argue that it is nearly impossible to catch every counterfeit product, no matter how hard they play whack-a-mole. However, these multi-billion dollar corporations have a responsibility to ensure the safety and reliability of products sold on their platforms to millions of consumers every day. There must be accountability for harmful counterfeit goods that put consumers’ health and safety at risk, and that accountability should not exclusively fall onto the third-parties selling counterfeit goods. Moreover, the Act only requires e-commerce platforms to take certain reasonable measures, understanding that the game of whack-a-mole is nearly impossible to win.

Conclusion

The Shop Safe Act would not only provide protection for consumers against harm to their health and safety, but would protect the profits and intellectual property rights of legitimate American businesses who have devoted countless hours and money into developing their products. Counterfeiting erodes the competitiveness of U.S. businesses, impacts innovation, and disincentivizes businesses from developing intellectual property fundamental to the success of our marketplace. In order to better protect the health of consumers and intellectual property of businesses in the global online marketplace, e-commerce platforms must bear more responsibility for policing counterfeit goods on their websites.