SHOP SAFE Act Reintroduced, Because Some Congressmembers Really Want to Kill Online Marketplaces
Two years ago, I covered the introduction of the SHOP SAFE Act, which would create a new species of trademark liability for online marketplaces. My 5,000 word post deconstructed the bill in detail so check it out to see what all the fuss was about.
This week, Sens. Coons and Tillis reintroduced the SHOP SAFE Act with only minor changes from its 2021 incarnation. As a result, it remains terrible. I gave the following comments to reporters:
For the reasons I described in my blog, the SHOP SAFE Act is a marketplace-killer. This bill is not a nuanced attempt to excise harmful products from the marketplace. It is a neutron bomb designed to wipe marketplaces off the Internet. Why Congress would spend time on doing that, when online marketplaces are essential to many communities, is absolutely beyond me. I don’t see how the bill can be justified as in the best interests of the proponents’ constituents.
I’m also confused about the timing. The INFORM Consumers Act was designed to redress the same concerns as the SHOP SAFE Act, and it just became effective a few months ago. What have we learned since then? Did the INFORM Consumers Act make a difference or not? If so, why do we need the SHOP SAFE Act? If not, why didn’t it work and what lessons can we learn from its failure? The bill sponsors need to explain how they researched the effects of the INFORM Consumers Act and how those insights got folded into their new draft. If they haven’t even done that work, they are clearly not interested in actually solving problems.
I note that the bill draft apparently dropped the sanctions for trademark owners who send bogus takedown notices. The provision was misdesigned in the prior draft, but rather than fix it to actually curb rightsowner abuses, they just stripped it out to make it even more rightsowners-favorable.
If you haven’t seen it, I document how trademark owners today are routinely abusing the court system to target online marketplace listings, sometimes using the pretextual justification that the listings are “counterfeits” to persuade judges. We need to curb the existing abuse, not give rightsowners more legal tools they can and will abuse.