Privatised enforcement series E: Online trading platforms sell out

By EDRi · May 18, 2011

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Deutsch: [Serie: Privatisierung der Online-Strafverfolgung – Teil E |]

In a bizarrely designed document, looking like a mix between a wedding
invitation and an accident in a blue ink factory, leading online retailers
Amazon, eBay and Priceminister have sold out the interests of their
consumers in a “memorandum of understanding” with a range of luxury goods
and copyright groups. In return, they have received a non-binding
commitment not to be sued by the rightsholders for twelve months.

Under the agreement, the Internet platforms agree to take responsibility
“to assess the completeness and validity of ” reports from rightsholders of
counterfeit goods being sold through their services and, based on this
extra-judicial notice, not only to remove the listings of the alleged
counterfeit material but also to take “deterrent measures against such

Furthermore, for reasons that are not explicitly explained, Internet
platforms will receive lists of words “commonly used for the purpose of
offering for sale of ‘obvious’ counterfeit goods” which they will “take into
consideration”. Up to the limits imposed by data protection law, “Internet
Platforms commit to disclose, upon request, relevant information including
the identity and contact details of alleged infringers and their user

On the other side, the rightsholders undertake to make requests for personal
information “in good faith” and in accordance with the law.

With regard to sellers who are adjudged by the online retailer to have
repeatedly broken the law, the Internet platforms undertake to “implement
and enforce deterrent repeat infringer policies, according to their internal
guidelines” including temporary or permanent suspension of the seller. These
deterrent measures are to be implemented taking into account a number of
factors, including the “apparent intent of the alleged infringer”. The
policing by the Internet platforms will, in turn, be policed by the
rightsholders who, subject to data protection law “commit to provide
information to Internet Platforms concerning those sellers they believe to
be repeat infringers and commit to provide feedback to Internet Platforms on
the effectiveness of Internet Platforms’ policies regarding repeat
infringers (e.g. if rights owners feel that there has been a failure to take
measures against a repeat infringer).

In the entire document, which consists of 47 paragraphs, just one is devoted
to the enforcement of the law by law enforcement authorities.

Memorandum of Understanding (4.05.2011)

(Contribution by Joe McNamee – EDRi)