Most conversations (i.e. arguments) about copyright tend to revolve around artists in the traditional sense—musicians, authors, filmmakers, photographers, etc.—wanting to make a living from their work. To those types of creators, the often dismissive responses from the tech-funded intelligentsia range between feigned sympathy and unvarnished antipathy for any author who would presume to earn her living making “art” in the first place.
Somewhere among those personal opinions, creators have been offered a litany of unsolicited advice as to how they might better understand the new economic realities of the digital age and, thus, learn to benefit from avenues of sustenance newly opened, rather than complain about old avenues that have been closed by rampant piracy. The classic example—the one that inspires so much gallows humor among creators—is the imperative that, for instance, musicians should sell more tee shirts rather than cling hopelessly to the idea of ever selling music itself.
But, let’s look at this theme in a different context, especially with regard to the number of people now working in that insecure stratum known as the “gig economy.” What if you heeded the wisdom of the academics, tech pundits, and internet billionaires and launched a venture that channels your creative work as merchandise? In other words, what if the way you sell your art is literally as tee shirts? Do the tech companies who promised you the opportunity of low-cost entry support this venture by facilitating the enforcement of your intellectual property? Meh.
After you invest the sweat equity and financial capital to create and register your original designs, then market, produce, and ship the goods, you can be sure that once your brand attracts customers, it will be counterfeited through ecommerce portals. This is a near certainty.
The counterfeiter/pirate will often be foreign-based, usually in China, and they will post pages on Amazon, eBay, Alibaba, etc. offering knockoffs that not only infringe your copyrighted designs, but also sell those pirate goods on inferior products. So, while the counterfeits are eating into your market, you will also receive calls from customers complaining that you sell poor quality merchandise. Or perhaps they’ll just give you bad reviews on the same wonderful crowd-sourcing platform that empowered the counterfeiters to rip you off in the first place.
Your ability to keep web-enabled counterfeiting and piracy from driving you out of business will depend on a number of factors, namely whether your company has grown large enough to absorb the cost of enforcement plus lost sales. Even for a decent-sized business (say $1-2 million in gross sales), these costs can be sufficient enough to have a substantial negative effect on the operating resources of the enterprise.
If trademarks are infringed, enforcement is a little easier to address as a holistic process; but quite often, a counterfeiter will exclusively infringe copyright by pirating original designs for tees, hats, towels, mugs, etc. This means someone—either an employee or outside counsel—will have to identify each of the items infringed, affirm their registrations, fill out the platform’s complaint forms, and follow the platform’s various steps to request removal of the infringing URLs from the site.
The steps required by each platform can either be fairly straightforward or a unnecessarily labyrinthine, but the sites will generally comply with removals in a timely manner. Nevertheless, the small business owner in this case has the same problem as the musician whose work keeps getting uploaded to YouTube—the game of Whack-a-Mole. The infringements you manage to remove in a period of days will soon reappear at new URLs with apparently new (but probably the same) sellers offering your products. And you get to do the whole process again.
So, the question naturally arises, why don’t the major online retailers use their astounding technological prowess to better automate the identity of likely infringers? It is true that Amazon allows a legit merchant to upload a product shot and have the system search all the places that image appears. This is not a useless tool, but it still implies a lot of extra, costly labor for the business/copyright owner.
Why doesn’t Amazon, for instance, provide a more proactive interface for registered merchants and manufacturers similar to YouTube’s Copyright Match for the community of YouTubers, which alerts a creator when her videos are used by other YouTubers? For instance, how hard is it for an Amazon or EBay to interpret data comprising a) a matching photo, b) a price point about 80% less than it should be, and c) a seller based in a piracy-rich location like China, and flag the URL as a likely infringer? This is too complicated for the most powerful computer companies in the world?
These are corporations that harvest and monetize the most granular data about us as consumers and private citizens. Have a casual conversation with someone about eyewear in the vicinity of your phone and, like magic, you will soon be served an ad for eyewear. Somehow, we accept this creepy invasion with a resigned shrug while simultaneously choosing to believe that these companies simply cannot analyze a basic data relationship between a product-maker and its legitimate products.
Whenever takedown/staydown proposals have been made in the context of the usual copyrighted works like sound recordings, the internet industry and its network of pundit(s) counter that any technology used to identify repeat infringements will be too error-prone, will not be able to identify when a given use is a fair use, and will inevitably stifle free speech. These complaints are debatable enough in the usual context, but such considerations do not apply even hypothetically to the role copyright plays in this kind of counterfeit merchandise.
If an online retailer were to more systematically remove repeat infringers from E-Commerce sites, they could alleviate some of the burden for start-up and smaller companies. And since this kind of entrepreneurism is exactly what the web industry claims to have enabled, it does seem like the right thing to do.
Of course, this has always been the fine print in Silicon Valley’s generous offer of free-to-use platforms for new, independent enterprise. Their interest in either ignoring copyrights, or even funding efforts to weaken copyright law, has always been an underlying flaw in their ebullient commands to “embrace the new models.” In reality, however, even if your rock band really could offset the loss of not selling music with the sale of tee shirts, the tees themselves would be infringed, and the major retail platforms will apparently be of very little help.