I have now handled a couple of cases for small business people victimized by the irresistible on-line juggernaut known as Amazon.com.

In both cases, our clients were innocent victims of overseas scam artists who operate covertly, anonymously and well beyond the reach of U.S. courts.  In both cases, Amazon provided these scam artists with easy entry into the U.S. market and the monetary incentive to engage in infringement.   In both cases, the ultimate question was whether Amazon should answer for the blatantly and admittedly infringing actions of those who sign up as Amazon “affiliates” and “sellers.”

Not surprisingly, our federal judiciary here in Seattle sided with Amazon, essentially telling our clients, “well, tough luck.”  (So much for “Equal Justice Under The Law.”)

Sadly, one of these cases resulted in an unpublished appellate decision from the Ninth Circuit upholding the lower court.  Good news for Amazon.  Not so good for my client who was essentially forced out of business by unchecked copying.

The other of these cases, Milo & Gabby v. Amazon (12-cv-1932) is currently up on appeal at the Federal Circuit (Appeal No. 16-1290) however,  and we expect to argue the case in the next few months.  While I continue to believe there is a thinly concealed bias among the courts in favor of big business (hey, can he say that on the Internet?), I am encouraged by what seems to be a growing awareness that all is not well with the current situation.  In particular, it appears others are starting to question whether unlimited access to cheap, foreign goods of dubious quality and infringing pedigree is really such a good thing after all.

Yesterday,  Birkenstock announced it was leaving Amazon due to widespread counterfeiting and unauthorized selling on the Amazon site. “The Amazon marketplace, which operates as an ‘open market,’ creates an environment where we experience unacceptable business practices which we believe jeopardize our brand,” said a Birkenstock spokesman. (Gee, welcome to the club!)  “Policing this activity internally and in partnership with Amazon.com has proven impossible.” (No kidding.)

Earlier this month, local Seattle station KING-5 reported that others are suffering as well.  According to KING-5, Amazon “is being criticized for its often slow response to rogue sellers offering counterfeit goods…Many of these bad players are based overseas and hide in the shadows of Amazon’s massive operation, frustrating loyal customers and threatening to put legitimate companies out of business.”

So far, the courts have shielded Amazon and others like them (e.g., eBay) essentially holding that their only obligation is to remove listings when notified of infringement.  As noted by KING-5, this is hardly a workable solution given the number of infringing listings and the fact that, even when removed, the listings simply reappear two hours later under a new name.

However, the patent laws of this country clearly state that anyone who “sells” or “offers to sell” a patented product is liable for patent infringement.  (This particular law was written in 1952 when Congress still used standard English and legislators more-or-less said what they meant.) So, the question is, does Amazon, the country’s “largest Internet retailer,” actually sell anything?  Does the enormously successful Amazon website actually offer anything for sale?  Do we really need to ask these questions?  Could this be why the lay public holds lawyers and the legal system in such high esteem?

So far, the courts have bought Amazon’s argument that it neither sells nor offers for sale the countless products appearing on its site, and that those who are victimized by admitted copiers from overseas should leave Amazon alone and try to track down these anonymous, overseas culprits themselves.  Again, great news for Amazon.  However, as evidenced by both Birkenstock and far smaller companies alike, this may not be so good for the country as a whole.  Anyway, we’ll know more when we get the decision on appeal.