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The Current State of Counterfeiting and Recommendations

Authors Guild Files Comments with DOC

On July 29, the Authors Guild submitted comments to the Department of Commerce (“DOC”) in connection with the DOC’s upcoming report on “Combating Trafficking in Counterfeit and Pirated Goods.” The DOC asked copyright owners and other stakeholders for their comments to help address counterfeiting and piracy as they increasingly rise in online third-party marketplaces. The more the DOC understands about the impact counterfeiting and piracy has on authors—who are badly suffering as a result of internet piracy—the better able it will be to assist in crafting potential remedies.

The Guild’s comments focused on how counterfeit and pirated books harm authors. For example, the Guild pointed out that the piracy of a single book is the theft of years of an author’s work, which can have a devastating effect on writers, and feels to many like a “violation.” The ability to make inexpensive but high-quality counterfeit copies using print-on-demand services, together with the expansion of physical book piracy from the higher-education realm (where it has long been present) to the world of trade fiction and nonfiction, means that a greater number of authors are suffering.

The Guild explained that a major contributing factor to the rise in book piracy and counterfeiting is that the law does not hold internet platforms accountable for the illegal activities that occur through their marketplaces; whereas physical marketplaces can be held liable for the copyright and trademark offenses of sellers on their premises. Online marketplaces take a reactive approach to policing the sale of pirated and counterfeit products, meaning that the author or publisher bears the burden of policing for infringement rather than the platforms, even though the latter are far better positioned to identify and stop commercial-level counterfeiting and piracy on their services.

The Guild’s comments recommended changes in the law and enforcement policies that would better protect copyright holders from counterfeiting and piracy, including more resources for criminal law enforcement and regulation of the major monopoly-like internet platforms, and suggested that passage of the proposed CASE Act would be helpful in this area as well.

We will review the DOC’s report once it has been issued and will factor its conclusions into our advocacy efforts.

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