Patently unfair – Epson takedowns continue

Platform takedown notice procedures are a personal patent guard-dog

As a verified rights-owner (VeRO) on eBay UK and by using Amazon UK’s reporting notice system, Seiko Epson Corporation (“Epson”) has free rein to remove any and all third-party cartridge listings that it wishes. It simply has to inform eBay or Amazon of the offending listing, provide its patent number and assert patent infringement. Listings are always removed, and affected sellers cannot prevent, challenge or appeal removal.

This one-sided system is fundamentally unfair. If Epson genuinely believes that its patents are being infringed it should issue court proceedings to enforce its rights. Instead, eBay and Amazon’s automatic takedown notice procedures provide the multi-million-dollar corporation with a blunt tool it can brazenly use to circumvent fair judicial process.

Targeting online sellers is a low move by Epson. The primary focus for patent enforcement should be compatible cartridge manufacturers or importers. Resellers are the least important part of the chain. However, online sellers have the disadvantage of being visible, and eBay and Amazon’s automatic and inflexible takedown policies make them by far the easiest target.

This is not an abstract concern: Epson’s ruthless patent-trolling is steadily shutting down small UK businesses, forcing them to lay off employees or close entirely. Takedown notices are damaging UK entrepreneurship, competition and independent business activity.

Absolute rights-holder protection originates in the E-Commerce Directive 2000

The ability of Epson to manipulate eBay and Amazon into acting as a personal patent guard-dog is not entirely of its own making, however, It is ultimately a symptom of a much larger issue, originating in the EU E-Commerce Directive 2000.

Aiming to give consumers certainty when conducting commercial transactions online, the E-Commerce Directive made online platforms responsible for illegal content on their site once notified of illegality. Nervous of the consequences of liability, platforms responded by implementing blanket takedown notice procedures which gave rights-holders complaining of illegal postings swift and absolute protection.

Subsequent judgments of the Court of Justice of the European Union (CJEU) and EU digital strategies have increasingly sought to make online platforms responsible for their content and activity. This has served to consolidate the platforms’ hands-off approach when it comes to rights-holders asserting infringement.

The takedown notice systems of eBay and Amazon deployed by Epson give affected sellers no opportunity to counter-notice. But if cartridge sellers can’t assert their legal right to post content against the platforms then they have no recourse against listing removal – and thus no recourse against the infringement of their right to free speech. Challenging listings removal is sellers’ only hope of pushback: small-time online enterprises lack the power and ready cash to force Epson to defend its patents in an open judicial forum.

Need for a Counter-Notice System

Policy attention on online platform regulation has largely focused on increasing responsibility for illegal or unwanted content; however, in this circumstance, platforms are taking action to remove content but this is having a significant negative effect on UK enterprises, both in terms of business viability and in terms of free speech.

Many UK businesses, especially individuals and small traders, rely on internet platforms to reach customers and conduct operations. However, the process of removal decision-making at platform level is often arbitrary and unfair. In situations of online defamation, counter-notice is available as a method of challenging speech removal. It allows individuals to put up a direct defence to the removal of their post. Although an imperfect system, this style of rebuttal opportunity could apply well in commercial contexts to protect businesses interests and ensure free speech rights.

For fairness and justice, there vitally needs to be a UK legislative mechanism put in place whereby online sellers can counter-notice against takedown demands and assert their rights to continue trading. If Epson doesn’t then dare take sellers to court for fear their patent might be overruled – well, that’s their choice.

If you have been affected by takedowns relating to Epson compatible ink cartridges and patent claims, please get in touch with us by emailing amy@openrightsgroup.org .