ENFORCEMENT

EXECUTIVE SUMMARY
• Advertising Best Practices § which have continued
to evolve over the past few years, strive to protect
the integrity of the digital advertising system as well
as third-party content and brands by preventing
the flow of advertising dollars to websites that are
engaged in illicit activity, including content theft
and counterfeiting. Building on pledges made by
the advertising community in recent years, a new
voluntary initiative has been launched to further
reduce advertising revenue from illicit sites. **
Through this and other industry-led initiatives,
many of the world’s largest brand advertisers and
agencies have committed to taking aggressive
steps to keep their digital ads off infringing sites
and to better ensure that their brands will not be
associated with illicit activity. ††
These and other collaborations and initiatives
operate with a sense of purpose to promote a
marketplace that provides an enhanced level of
protection to consumers and legitimate businesses.
One advantage of voluntary initiatives is their ability
to adapt quickly to changes in the rapidly-evolving
marketplace and craft agreements and initiatives that
are responsive to marketplace developments. By making
it more difficult for illicit actors to operate without
consequence, these and other initiatives are improving
the marketplace.
§
Id. Since the issuance of the Joint Strategic Plan, leading ad networks
announced in July 2013 certain “Best Practices Guidelines for Ad Networks
to Address Piracy and Counterfeiting,” and the Interactive Advertising Bureau
(IAB) updated its “Network and Exchange Quality Assurance Guidelines”
to include a ban on selling ad inventory on “copyright infringement” sites.
In June 2014, the IAB also announced its Trustworthy Digital Supply Chain
Initiative, identifying fighting online piracy as one of its five objectives, along
with eliminating fraudulent traffic, combatting malware, and promoting brand
safety. See IAB, “Winning the War on Crime in the Supply Chain,” available
at http://www.iab.net/iablog/2014/06/Trustworthy-Digital-Supply-Chain.html.
**
The Trustworthy Accountability Group (TAG) was created by the American
Association of Advertising Agencies (4A’s), Association of National Advertisers
(ANA), and Interactive Advertising Bureau (IAB) to work collaboratively with
companies throughout the digital ad supply chain, and combat ad-supported
Internet piracy. See TAG, http://www.tagtoday.net/aboutus/.
††
See TAG, “Largest Brands And Agencies Take TAG Pledge To Fight Ad-
Supported Piracy For All Digital Ads,” (December 2015), accessed from
https://www.tagtoday.net/largest-brands-and-agencies-take-tag-pledge-tofight-ad-supported-piracy-for-all-digital-ads/
(noting that many of the world’s
largest brand advertisers and agencies have pledged to require their ad
partners “to take aggressive steps to help fight the $2.4 billion lost to pirate
sites each year”).
*
To learn more about evidence-based approaches, see The White House,
“2017 Budget of the United States Government: Analytical Perspectives,
Chapter 7: Building the Capacity to Produce and Use Evidence,”
accessed at https://www.whitehouse.gov/sites/default/files/omb/budget/
fy2017/assets/ap_7_evidence.pdf.
How Will Solutions be Evaluated and Success
Measured?
The Federal Government must strive to implement
results-oriented strategies that measure success by
documenting progress. The Federal Government must
improve agency efficiencies and resource allocations,
employ administrative and policy levers to drive more
effective evidence-based IP enforcement practices, and
enhance public understanding of the dimensions of the
issues.
Good government programs use a broad range of
analytical and management tools, which collectively
comprise an “evidence infrastructure,” to learn what
works (and what does not), for whom and under
what circumstances it works (or does not), as well as
to improve results. Evidence can be quantitative or
qualitative and may come from a variety of sources,
including performance measurement, evaluations,
statistical studies, retrospective reviews, and other data
analytics and research. *
In the IP enforcement environment, there are
a number of challenges to measuring progress in
minimizing illicit trade in counterfeit and pirated goods,
large-scale commercial infringement of copyrights,
trade secret misappropriation, and other acts of IP
infringement. Attempts to approach the appraisal
from a quantitative fashion—that is, by statistics or
mathematical techniques—remain important, but can
be limiting.
For example, IP misappropriation and other illicit
activities are dynamic in nature, rapidly changing and
taking different forms, resulting in measurement data
that is often of no prospective use by the time it can
be collected. With respect to the data itself, there is
a need to make more data from the government and
private sectors available in order to enhance analysis
of the state of the marketplace. Additionally, the
multidimensional nature of illicit IPR-based activities
complicates marketplace assessments. For example,
is an increase in product seizure numbers indicative
of higher performance in targeting and interdiction
of counterfeit goods; or the result of a higher volume
of illicit trade in counterfeit goods; or due to the
ineffectiveness of other “upstream” initiatives to
reduce illicit trade in the first instance; or all of
the above?
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