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Chapter 5
Although the VeRO has been widely used by intellectual property owners since its inception in
the mid-2000s, the program has not been without its critics. In particular, many public complaints
have been voiced about eBay’s alleged lack of a legitimate internal investigation and
widespread misuse of VeRO program by parties seeking to remove content that does not actually
violate their IP rights. 150
IV.
CONCLUSION
The overarching challenge is to develop and implement a multi-pronged solution which is effective,
efficient, and replicable across jurisdictions. In order to be both effective and politically
feasible, the approach must be proportionate, fair, provide due process, respect fundamental rights
and avoid unreasonably impacting third parties.
In order to accomplish this objective, rightsholders, service providers and Internet intermediaries
must focus on raising awareness of what constitutes infringing content, educate the public about
available reporting mechanisms for identifying infringing content, offer affordable legal alternatives,
and enhance incentives for intermediaries to take affirmative steps to address PFWs. 151
To date, a number of voluntary industry initiatives to combat infringing and counterfeiting
activities are already underway. Some of these initiatives have successfully enhanced the ability of
copyright and trademark owners to enforce expediently and effectively their intellectual property
rights. Most notably, YouTube’s ContentID program and associated takedown tools, and eBay’s
VeRO program have provided copyright and trademark owners with effective mechanisms for
efficiently dealing with infringing content and counterfeit goods.
Educational initiatives, such as the Copyright Alert System and industry-driven voluntary best
practices among payment processors and advertising entities appear to offer a significant degree of
promise that a politically feasible and financially reasonable solution may be achieved.
However, these moderately effective mechanisms are not sufficient on their own to combat PFWs.
For example, while companies like Apple and Google conduct their own independent investigations
upon receipt of a copyright or trademark infringement complaint, the factors these investigation
teams actually evaluate when considering infringement claims and making content removal
determinations have not been publicly disclosed.
Tools designed merely to streamline submission of infringement notifications do not go far
enough. Even with such enhanced tools, under the legal framework of the DMCA and existing
trademark precedent, rightsholders bear the entire burden of patrolling for infringements by PFWs.
A broader approach that involves intermediaries sharing in the burden of addressing PFWs benefits
the U.S. economy as a whole and reduces the prevalence of infringing and counterfeited products
that erode the market share of legitimate rightsholders who also offer their content, goods and
services to U.S. consumers.
Given that voluntary industry initiatives have produced some successes but have also fallen short
in many respects, legislation that enhances the effectiveness of, and incentivizes expansion upon,
these initiatives or that creates greater uniformity among such efforts would represent an effective
and feasible approach to curtailing online infringement and counterfeiting by PFWs.
Finally, provided that such a solution seeks to balance the competing interests in the online world,
it could result in cooperative efforts to stop the outflow from the U.S. to overseas of not only
content and goods, but also the money that encourages PFWs to continue their infringing (but
highly lucrative) activities.
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