Gus Hurwitz on counterfeit and defective goods

USA Today – ICLE Director of Law & Economics Programs Gus Hurwitz was quoted by USA Today in a story about platform liability for the sale of counterfeit and defective goods. You can read the full piece (behind a subscribe paywall) here.

While it is illegal under the Consumer Product Safety Improvement Act of 2008 to sell a recalled product, Facebook is merely facilitating the sale. A similar debate has been playing out in numerous court cases, with judges weighing whether Amazon can be held liable for defective or dangerous products sold on its site, said Justin “Gus” Hurwitz, a professor of law at the University of Nebraska-Lincoln who focuses on regulation in the tech world. Amazon has generally been considered responsible only if the item shipped from an Amazon warehouse, Hurwitz said. The fact that Facebook might make a small commission for coordinating some sales likely wouldn’t increase the company’s liability, he said.

“There is no legal framework that would require Facebook to do anything about recalled products,” Hurwitz said. “The issue here is that Facebook isn’t doing the sale. Facebook is only mediating the sales between buyer and seller.”

Hurwitz said the issue dovetails with a larger conversation about content moderation and whether platforms should be responsible for the conduct of their users, whether that be posting misinformation or selling dangerous goods. He said he doubts that debate will result in legislation requiring Facebook to police its marketplace or generate enough public pressure that Facebook takes a more proactive stance on its own. Doing so, he said, could actually invite legal scrutiny.

“Companies could be reasonably worried that if they start policing these products and a dangerous recalled product is sold, that consumers or courts might say, ‘Hey you’re responsible for this. You had told us that you were protecting us,’” Hurwitz said. He added that Facebook might be concerned about “creating liability that does not exist.”