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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
Office of the Intellectual Property Enforcement Coordinator online_ip_piracy.pdf. See also United Nations Interregional Crime and Justice Research Institute (UNICRI) and International Chamber of Commerce (ICC)/Business Action to Stop Counterfeiting and Piracy (BASCAP), “Confiscation of the Proceeds of Crime: A Modern Tool for Deterring Counterfeiting and Piracy” (April 2013), accessed from http://www.unicri.it/services/library_ documentation/publications/unicri_series/A_modern_tool_for_ deterring_counterfeiting_and_piracy.pdf; European Commission, “Commission presents actions to better protect and enforce intellectual property rights” (July 1, 2014) ("The adoption of this Action Plan shows how we want to re-orientate our policy towards better compliance with intellectual property rights by the private sector", said EU Commissioner for Internal Market and Services Michel Barnier. "Rather than penalising the individual for infringing intellectual property rights, often unknowingly, the actions set out here pave the way towards a ‘follow the money’ approach, with the aim of depriving commercial-scale infringers of their revenue flows."), accessed from http://europa.eu/rapid/ press-release_IP-14-760_en.htm. 11 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. 91 (March 2015), accessed from http://www.iccwbo.org/Advocacy-Codes-and-Rules/ BASCAP/International-engagement-and-Advocacy/Roles-and- Responsibilities-of-Intermediaries/. 12 See Victoria Espinel, United States Intellectual Property Enforcement Coordinator, “Progress on the Intellectual Property Enforcement Strategy” (February 7, 2011), accessed from https:// www.whitehouse.gov/blog/2011/02/07/progress-intellectualproperty-enforcement-strategy; United States Government, “2013 Joint Strategic Plan on Intellectual Property Enforcement,” at pp. 1-2, 36 (June 2013), accessed from https://www.whitehouse.gov/ sites/default/files/omb/IPEC/2013-us-ipec-joint-strategic-plan.pdf. 13 See, e.g., International Anti-Counterfeiting Coalition (IACC), “RogueBlock®,” accessed from http://www.iacc.org/onlineinitiatives/rogueblock (discussing the “collaborative effort of the IACC and the payment industry to create a streamlined, simplified procedure for members to report online sellers of counterfeit or pirated goods directly to credit card and financial services companies”; “To date, the program has terminated over 5,000 individual counterfeiters’ merchant accounts, which has impacted over 200,000 websites.”) Digital+Advertising+on+Suspected+Infringing+Websites, citing to PRS for Music and Google, “The Six Business Models of Copyright Infringement: A data-driven study of websites considered to be infringing copyright,” at p. 11 (June 27, 2012), accessed from https://www.prsformusic.com/aboutus/ policyandresearch/researchandeconomics/Documents/ TheSixBusinessModelsofCopyrightInfringement.pdf. 17 See, e.g., Digital Citizens Alliance, “Good Money Gone Bad: Digital Thieves and the Hijacking of the Online Ad Business” (February 2014) at p. 8, accessed from: http://media. digitalcitizensactionalliance.org/ 314A5A5A9ABBBBC5E3BD824CF 47C46EF4B9D3A76/4af7db7f-03e7-49cb-aeb8-ad0671a4e1c7.pdf. 18 See, e.g., Google, “AdSense Program Policies” (“Copyrighted material. AdSense publishers may not display Google ads on webpages with content protected by copyright law unless they have the necessary legal rights to display that content. This includes sites that display copyrighted material, sites hosting copyrighted files, or sites that provide links driving traffic to sites that contain copyrighted material. . . . Counterfeit goods. AdSense publishers may not display Google ads on webpages that offer for sale or promote the sale of counterfeit goods. . . .”) accessed from https://support.google.com/adsense/answer/48182?hl=en&ref_ topic=1261918&rd=1; Google, “Content Policies” (“Copyrighted material. What’s the policy? Google ads may not be displayed on websites with content protected by copyright law unless they have the necessary legal rights to display or direct traffic to that content. Some examples of copyrighted content might include MP3 and video files, television shows, software, comics, and literary works. . . .”), accessed from https://support.google.com/adsense/ answer/1348688#Copyrighted_material. 19 Office for Harmonization in the Internal Market (OHIM), “Digital Advertising on Suspected Infringing Websites,” at pp. 23-24 (January 2016) (“click generators and malware found in 51% of the ads”), accessed from https:// euipo.europa.eu/ohimportal/documents/ 11370/80606/ Digital+Advertising+on+Suspected+Infringing+Websites. See Digital Citizens Alliance, “Good Money Gone Bad: Digital Thieves and the Hijacking of the Online Ad Business,” at p. 9 (February 2014) (“The actual downloads often contain malware. These ads were extremely common, appearing on 60% of the large sites.”), accessed from http://media.digitalcitizensactionalliance. org/314A5A5A9ABBBB C5E3BD824CF47C46EF4B9D3A76/4af7d b7f-03e7-49cb-aeb8-ad0671a4e1c7.pdf. 14 See, e.g., International Intellectual Property Alliance, Comment Letter to U.S. Intellectual Property Enforcement Coordinator, at pp. 5-6 (October 16, 2015) (providing comments in response to IPEC’s Federal Register notice of September 1, 2015), accessed from https://www.regulations. gov/?s#!documentDetail;D=OMB-2015-0003-0043. 15 Digital Citizens Alliance, “Good Money Still Going Bad: Digital Thieves and the Hijacking of the Online Ad Business,” at p. 1 (May 2015), accessed from https://media.gractions.com/314A5A 5A9ABBBBC5E3BD824CF47C46EF4B9D3A76/298a8ec6-ceb0- 4543-bb0a-edc80b63f511.pdf. 16 See, e.g., Office for Harmonization in the Internal Market (OHIM), “Digital Advertising on Suspected Infringing Websites,” at p. 1 & n. 4 (January 2016) (explaining that “86% of peer-to-peer infringing websites exist due to advertising revenue”), accessed from https:// euipo.europa.eu/ohimportal/documents/ 11370/80606/ 20 See, e.g., United States Government, “2013 Joint Strategic Plan on Intellectual Property Enforcement,” at pp. 2, 36 (June 2013), accessed from https://www.whitehouse.gov/sites/default/files/ omb/IPEC/2013-us-ipec-joint-strategic-plan.pdf. For additional background on the advertising industry activities, see the following discussion in Trustworthy Accountability Group (TAG), “Core Criteria for Effective Digital Advertising Assurance, version 1.0,” at page 2 (footnotes omitted) (February 2015), accessed from https:// tagtoday.net/wp-content/uploads/2015/02/Core-criteria_final.pdf: “The major advertising trade associations have recognized this issue and have taken a leadership role in addressing it. In 2012, the Association of National Advertisers (ANA) and the American Association of Advertising Agencies (4A’s), supported by the Interactive Advertising Bureau (IAB), adopted a Statement of Best Practices to Address Online Piracy and Counterfeiting, providing language for marketers to use in their media placement contracts and insertion orders to prevent advertisements from appearing on sites SECTION 2 83
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U.S. JOINT STRATEGIC PLAN ON INTELL
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B. In Furtherance of a Healthy Doma
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PREAMBLE A Reflection on Creativity
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Senior Advisory Committee Establish
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INTRODUCTION IP-intensive industrie
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EXECUTIVE SUMMARY Services, the Dep
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While seeking to be thorough, the S
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EXECUTIVE SUMMARY • Advertising B
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1 THE GLOBAL SCALE OF INTELLECTUAL
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INTRODUCTION The story of intellect
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ACKNOWLEDGEMENTS With thanks to, an
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