ENFORCEMENT

Joint Strategic Plan on Intellectual Property Enforcement
ENDNOTES
SECTION 2
1
See, e.g., Organization for Economic Cooperation and
Development, “The Economic Impact of Counterfeiting and
Piracy,” at p. 273 (2008), accessed from http://www.keepeek.
com/Digital-Asset-Management/oecd/trade/the-economic-
impact-of-counterfeiting-and-piracy_9789264045521-
en#.V_0WF_lrjq4#page1. See also Digital Citizens Alliance,
“Good Money Gone Bad: Digital Thieves and the Hijacking of
the Online Ad Business,” at p. 8 (February 2014), accessed from
http://media.digitalcitizensactionalliance.org/ 314A5A5A9ABBB
BC5E3BD824CF47C46EF4B9D3A76/4af7db7f-03e7-49cb-aeb8-
ad0671a4e1c7.pdf.
2
See, e.g., Blackstone, Erwin et al., “The Health and Economic
Effects of Counterfeit Drugs,” American Health & Drug Benefits,
7(4): 216, at p. 220 & n.37 (June 2014), accessed from http://
www.ncbi.nlm.nih.gov/pmc/articles/ PMC4105729/#R37, citing
to Ehrenberg, Rachel, “Counterfeit Crackdown,” Science News,
179: 22-25 (June 18, 2011), available at [subscription required]
https://www.sciencenews.org/article/counterfeit-crackdown.
3
See, e.g., Kan, Paul Rexton et al., “Criminal Sovereignty:
Understanding North Korea’s Illicit International Activities,” at
p. 15 (U.S. Army War College, Strategic Studies Institute; March
2010), accessed from http://www.strategicstudiesinstitute.army.mil/
pdffiles/pub975.pdf.
4
A diverse set of stakeholders has long advocated for the
development and implementation of a “follow the money”
approach as a solution to curb commercial online piracy and
counterfeiting. This approach is embodied in the voluntary private
sector initiatives that have been developed and implemented,
which are discussed elsewhere in this Strategic Plan and in the
2013 Joint Strategic Plan on Intellectual Property Enforcement.
This approach was also discussed, for example, at the 2011
hearing (before the House Judiciary Committee’s Subcommittee
on Intellectual Property, Competition, and the Internet) on
“Promoting Investment And Protecting Commerce Online:
Legitimate Sites v. Parasites” (March 14 and April 6, 2011), House
Doc. 112-153, accessed from https://www.gpo.gov/fdsys/pkg/
CHRG-112hhrg65186/html/CHRG-112hhrg65186.htm. See also
Abrams, Rachel, “Eric Schmidt, Harvey Weinstein Talk Piracy,”
Variety (July 11, 2013), accessed from http://variety.com/2013/
digital/news/sun-valley-eric-schmidt-harvey-weinstein-talkpiracy-1200561819/
(quoting Eric Schmidt from Google as saying
that: “Our position is that somebody’s making money on this
pirated content and it should be possible to identify those people
and bring them to justice.”).
5
See International Chamber of Commerce (ICC)/Business
Action to Stop Counterfeiting and Piracy (BASCAP), “Roles and
Responsibilities of Intermediaries: Fighting Counterfeiting and
Piracy in the Supply Chain,” at p.89 (March 2015), accessed
from http://www.iccwbo.org/Advocacy-Codes-and-Rules/
BASCAP/International-engagement-and-Advocacy/Roles-and-
Responsibilities-of-Intermediaries/. See also Federal Bureau of
Investigation, “Countering the Growing Intellectual Property
Theft Threat: Enhancing Ties Between Law Enforcement and
Business” (January 22, 2016), accessed from https://www.fbi.
gov/news/stories/countering-the-growing-intellectual-propertytheft-threat
(“Technological advances continue at an even faster
pace, dramatically increasing the threat posed by criminals
who steal trade secrets, produce and/or traffic in counterfeit
products, and infringe on copyrights. One important factor in
this increase is the global expansion of online marketplaces,
which aids international and domestic criminal organizations in
trafficking in counterfeit goods.”).
6
Below are examples of Terms of Service:
Visa Terms
of Service:
MasterCard
Terms of
Services:
American
Express
Terms of
Services:
“Visa is committed to preventing the use of its
payment brand and system for illegal transactions…”
and “upon receiving…credible evidence…that the
merchant (“Merchant”) is engaged in transactions
involving the sale of infringing goods on the
Internet using Visa-branded payment cards, Visa
[may direct] the Merchant to cease selling infringing
goods identified by the IP Owner or terminating the
Merchant account.”
See https://usa.visa.com/legal/intellectual-property-rights.
html
“MasterCard has…adopted a policy that provides
for the immediate removal of any content or the
suspension of any user that is found to have infringed
on the rights of MasterCard or of a third party, or that
has otherwise violated any intellectual property laws
or regulations…”
See https://www.mastercard.us/en-us/about-mastercard/
what-we-do/terms-of-use.html#propertyrights
Establishing that American Express cards may not be
used “…for sales of products over the Internet that
would constitute a violation of copyright or trademark
laws[.]”
See https://www.americanexpress.com/us/content/
legal-disclosures/website-rules-and-regulations.
html?inav=footer_Terms_of_Use
7
International Anti-Counterfeiting Coalition, “IACC Payment
Processor Portal Program: First Year Statistical Review,” at pp.
13-14 (Oct. 2012), accessed from http://docplayer.net/2433238-
International-anticounterfeiting-coalition-iacc-paymentprocessor-portal-program-first-year-statistical-review.html.
8
“A ‘trace message’ is an attempt to make an online purchase
using a valid, yet set-to-decline credit card. It is similar to a
test purchase, but because the payment is declined, no goods
are delivered. The purpose of a trace message is to assist the
Card Network in identifying the merchant account associated
with the website.” International Anti-Counterfeiting Coalition,
“IACC Payment Processor Portal Program: First Year Statistical
Review,” at p. 6 n.5 (October 2012), accessed from http://
docplayer.net/2433238-International-anticounterfeitingcoalition-iacc-payment-processor-portal-program-first-yearstatistical-review.html.
Regarding the detection systems that
thwart “test” transactions, see id., at pp. 15-16 & n. 18.
9
By contrast, in the closed-loop payments model (e.g.,
American Express), the payment services are provided directly
to merchants by the owner of the network without involving
third-party financial institution intermediaries. See, e.g.,
International Anti-Counterfeiting Coalition, “IACC Payment
Processor Portal Program: First Year Statistical Review,” at p. 7
(October 2012), accessed from http://docplayer.net/2433238-
International-anticounterfeiting-coalition-iacc-paymentprocessor-portal-program-first-year-statistical-review.html.
10
See, e.g., Mike Weatherley, MP (Intellectual Property Adviser
to the Prime Minister), on “Follow The Money: Financial
Options To Assist In The Battle Against Online IP Piracy: A
Discussion Paper by Mike Weatherley, MP ” (2014), accessed
from http://www.olswang.com/media/48204227/follow_the_
money_financial_options_to_assist_in_the_battle_against_
82