SHOP SAFE Is Another Attempt to Fix Big Tech That Will Mostly Harm Small Players and Consumers

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Congress is once again trying to fix a very specific problem with a broad solution. We support the SHOP SAFE Act’s underlying goal of protecting consumers from unsafe and defective counterfeit products.  The problem is that SHOP SAFE tackles the issue in a way that would make it incredibly difficult for small businesses and individuals to sell anything online. It will do little to stop sophisticated counterfeiters and will ultimately do consumers more harm than good, by obstructing competition and hindering consumers’ ability to resell their own used goods.

Think about trying to sell something used online. Think about having a wool sweater that’s still in great condition but just doesn’t make sense for you anymore. Maybe you moved from Denver to Miami. So, as many of us do these days, you list your sweater online. You put it on eBay or Facebook Marketplace. Or a friend says they know someone who wants it and puts you in touch via email. You exchange the sweater for some cash, and everyone’s happy.

Now imagine that before you can make that sale, you have to send eBay (or Facebook, or your email provider) a copy of your government ID. And verify that you took “reasonable steps,” whatever that means, to make sure the sweater isn’t a counterfeit. And state in your listing where the sweater was made, or if you don’t know, tell the platform all the steps you took to try and figure that out. And carefully word your listing to avoid anything that might get it caught in an automated trademark filter. At this point, you might reasonably decide to just chuck the sweater in the trash rather than jump through all these hoops.

That’s the regime SHOP SAFE threatens to create.

SHOP SAFE Is Bad for the Little Guy

It’s easy, conceptually, to collapse the world of online selling to just Amazon. But that isn’t the reality. Laws written with only Amazon in mind will solidify Amazon’s dominance by imposing burdens that are onerous for small players to meet. And while the requirements of the bill are clearly geared towards large marketplaces like Amazon, the universe of platforms it would apply to is much broader. The current bill language could be interpreted to cover anything from Craigslist to G

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