Nothing is sacred in the name of intellectual property
On the European Brands Association's dangerous proposal
An illustration from Don Quixote; a print by Gustave Doré

Tue, 22 Jun 2021

A dangerous proposal

AIM (The European Brands Association, @AIMbrands) is advertising its position on the EU Commission's draft Digital Services Act. At first I thought it was stupid, but it's not.

It's malicious and dangerous.

The positioning paper states that banning online sales of counterfeit products will never affect freedom of expression, because "illegal is illegal".

Although in its impact assessment the European Commission states that the sale of products online can affect the freedom of expression in certain cases, we feel that this is a rather theoretical concept. In our view, an illegal product is an illegal product, regardless of its nature, and should be removed.

Despite what AIM would like, intellectual property is a legal quagmire. "Illegal" is not a clear-cut term.

Suppose I have a vintage clothing shop online. Someone sells his 80s t-shirt with a satirical take on Star Wars printed on it. Disney lawyers say it's an infringement on copyright, I say it's satire. Only a court can decide whether the shirt is indeed illegal.

AIM has its own definition of legality: either a retail platform deems something is illegal, or the court decides it is illegal or a third party notice declares something is illegal.

Once identified as illegal, by proactive measures or following a judicial decision or third party notice, that listing and identical or equivalent postings/content should be permanently removed and remain inaccessible thereafter.

This is so wrong. No "third party" (a Disney lawyer in T-shirt case) can decide whether something is illegal or not. And the precautionary actions of a platform, afraid of getting letters from third parties, aren't an indication of the legality of something either.

AIM goes even further in loosening its ideas of law: if you as a seller are accused of infringing on Disney's trademarks, it's up to you to prove you are not. You're not presumed innocent until proven otherwise, you're guilty until proven otherwise because someone says so.

While the right holder is (correctly) obliged to provide evidence as to why the listing is illegal in its notice, currently many platforms do not require the same level of (or indeed, any) proof from sellers alleging the contrary: given that they are the only party who has access to the actual goods this unequal treatment may be open to abuse. If there is a dispute between a right holder and an online trader (including an appeal) as to the legality of the product, the burden of proving that the item is genuine should lie with the seller.

What this basically says is: "Everything you sell is illegal until the rightsholders say it isn't".

And if you're not scared enough by this, your contact details should also be shared with the rights holders so that they can intimidate you even further.

We would therefore appreciate an amendment to Article 22(5) to clarify that the verified contact details and identity of the trader should also be provided to Law Enforcement Agencies and right holders to allow them to further investigate and eventually pursue legal action.

If you are found to be a repeat offender, you should be banned permanently from selling anything.

We are also disappointed to see that repeat offenders may only be suspended temporarily from the platform with no possibility of permanent exclusion: this runs contra both to fair trading practices and consumer protection goals. Those who deliberately and repeatedly infringe the law should not be permitted to continue so to do with impunity.

But who decides whether you "repeatedly infringe the law"? Right, the right holders...

So if a platform gets a trademark infringement notice (again, this does not mean something is illegal, it only means someone believes it is) and the platform doesn't agree, it can go to court. Which it doesn't want to do, because it makes no economic sense.

All of this will lead to a situation where platforms will proactively ban goods they're not 100% certain about, because they risk being accused of selling "illegal" goods.

So bye-bye Star Wars satire t-shirts. Bye bye any kind of expression as long as someone somewhere may think it infringes on their rights.

"Illegal is illegal" and "this does not infringe on free speech" says AIM. Of course it doesn't.

Stifling innovation

Small or large, everyone should implement counterfeit-protection measures.

Overall, while we appreciate that not all platforms have the same capacity or reach, we should guard against giving any impression that smaller platforms do not have to operate within both this and other laws, including our consumer protection and intellectual property frameworks.

Thanks for stifling innovation, AIM.

Not only are these measure not doable (see later), you also raise the bar for entry for newcomers in the market considerably.

These propsal will lead to a concentration of power with a select few platforms who will be able to follow the rules. AIM will come crying to the legislators when they realize they shot themselves in their own foot and the big platforms start squeezing them with the power they've amassed.

Meanwhile, the public will have lost access to innovative players in the market and remain shackled to the reactionary practices of the few remaining powerhouses.

Technology will solve everything

AIM is "disappointed" that it is not compulsory for platforms to check whether the goods on sale are counterfeit. "Offline retailers have to do this, so why not online retailers?", their reasoning goes.

Most online platforms have no stock. They serve as a platform for other sellers (which AIM knows very well). Offline retailers can inspect the physical product, most online retailers can't.

Nevertheless, all platforms large and small should be required to ensure that an illegal product does not reappear on their platform. They should use "image recognition and keyword technologies" to do so.

From a practical perspective, most platforms are already equipped with tools (mainly based on key words and image recognition technologies) allowing for the easy identification of products which have been taken down previously

How exactly will "image recognition" and "keyword tech" will help detect counterfeits?

Counterfeiters will always find ways of beating the monitoring system. Catching up with this is a huge effort for the sales platforms. It's not "easy" or "practical" at all.

AIM also recommends that "data on illegal goods are shared across platforms". But nothing more is said about this.

How organisations such as these can still wave their hands in the air and say "oh but technology can solve this", is beyond me.

Write your MEP

Lobby groups like AIM cannot be allowed to dictate your digital future. You can share this article, but more importantly: write your MEPs if you are concerned.