USTR Notorious Markets report: Do some companies want regulators to look the other way?

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In September 2020, the Office of the United States Trade Representative issued a request for comments, to help identify online and physical markets to be considered for inclusion in the 2020 Review of Notorious Markets for Counterfeiting and Piracy (Notorious Markets List).   This comment period ended on November 9, 2020, and the rebuttal period ended on November 22nd.

The 2020 Notorious Markets List examines the use of e-commerce platforms and other third-party intermediaries to facilitate the importation of counterfeit and pirated goods into the United States.  The final report was released in January 2021.

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Read the 53 formal comments submitted for the 2020 Notorious Markets report, by media industry stakeholders

Read the 2019 report and its companion Special 301 report.

Submissions were lengthy and detailed

The Motion Picture Association (MPA) claims to have identified more than a thousand illegal “IPTV” streaming sites, and singled out Cloudflare, which provides reverse proxy services that infringing sites can use to hide their Web sites from the public Internet, as an offender.  MPA also provided an extensive list of streaming aggregators, several Web sites that aggregate URLs to multiple streaming sites, multiple linking sites, hosting providers, e-commerce sites and cyberlockers as well as social media, illicit ad networks, and illicit streaming device platforms in its submission.

Sports leagues including the Spanish football league, LaLiga and broadcasters including Canal+ and beIN Media – victim of the notorious beoutQ piracy attack – also identified numerous individual infringing distribution channels by name and URL, as well as pirate TV operators in regions such as Sub-Saharan Africa.

The anti-infringement company Incopro identified a number of online platforms through which its technologies have detected infringement, including Facebook and Instragram, Amazon, eBay; and sites in China, Poland, South Asia and elsewhere.

Some rebuttals said they were cited unfairly

Many of the companies that video providers cited as piracy risks submitted rebuttals in their own defense, including FacebookCloudFlare, Amazon and others.  Cloudflare says it polices for infringement.  Amazon claims zero tolerance for infringement in its platforms, and explains its anti-infringement practices.

Facebook stressed that the Notorious Markets and Special 301 reports “should not be misused to target U.S. companies, particularly U.S. companies that have developed and advanced industry-leading best practices to protect intellectual property.”

Why this matters

Several of the commenting companies also took positions that US companies should not be included in the Notorious Markets report.  But what happens when – despite best efforts – US-based or US-headquartered platforms become avenues for piracy anyway?  Obviously, any company – us-based or not – should be seen as innocent unless proven guilty.

The Notorious Markets Report is one of two reports published by the US Trade Representative, which is used to identify facilitators of copyright piracy and trademark counterfeiting that infringe on rights-holders, rights-owners, and businesses that rely upon intellectual property protections to conduct their affairs.  The other – the Special 301 report – provides an analysis of the IP climate in particular countries.

Together, these reports provide an important ‘document of record,’ that helps guide law enforcement and the pursuit of legal cases.

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