clock menu more-arrow no yes
Illustration by Kristen Radtke / The Verge

Filed under:

Takedown notices are threatening online thrift shops — just as business is exploding

Small businesses say their livelihoods are threatened even when they aren’t running afoul of copyright and trademark claims

If you buy something from a Verge link, Vox Media may earn a commission. See our ethics statement.

In January 2020, Jade Myers, a successful seller of secondhand clothes on Poshmark, came across a trove of designer swimwear and apparel at a thrift store that she knew would be a hit with her shoppers. She shelled out for dozens of pieces, prepared and photographed them, and listed them on her shop, Ornamental Stone. Within days, the listings turned into an intellectual property nightmare.

The pieces Myers found and purchased for resale were from the buzzy brand Onia x WeWoreWhat, designed by fashion influencer Danielle Bernstein. After Bernstein was alerted to the Poshmark listings, she jumped into Myers’ Instagram DMs to beg her to take the products down — they were unreleased samples that had been mistakenly donated to charity by the brand. But when the two weren’t able to reach an agreement on payment after Myers pulled the listings to sell back to the brand, Bernstein took the legal route: lawyers representing the label sent a letter claiming Myers was infringing on their trademarks and copyrights by hosting the goods on her store. Now Myers’ revenue was at risk, and Bernstein was threatening to have her entire Poshmark shop shut down.

“In my head, I had already accepted the idea that I was going to lose my business,” Myers says. “That’s the point of desperation and sadness that I felt.”

A screenshot of an email Myers received, which she posted to Instagram Stories.
Image: Jade Myers

Myers’ experience, which rippled through fashion and reseller corners of social media, is just one example of a phenomenon small businesses say they’ve struggled with for years. List a secondhand product from fashion companies like Michael Kors, Dior, or YSL, and you could soon be facing down an IP notice trying to block or restrict the sale, say online sellers. These takedowns can destabilize independent merchants and jeopardize their livelihoods. And now, sellers say overzealous takedowns are getting more and more intense across different e-commerce platforms, just as consumers are beginning to embrace secondhand fashion over buying directly from manufacturers and big-box retailers.

The secondhand fashion industry isn’t growing — it’s exploding. An analysis by GlobalData suggests the secondhand market in the US is expected to more than double by 2025 to $76.4 billion, and retailers are trying to claim territory. In June, Etsy bought Gen Z-friendly competitor Depop for $1.6 billion, and resale platforms like Vestiaire, Tradesy, and Vinted have raised hundreds of millions of dollars this year. Brands like Levi’s and Urban Outfitters have launched in-house vintage and secondhand sections in recent years, and luxury labels like Jean Paul Gaultier — following viral attention on its vintage pieces — are renting and selling their archives.

Vintage and secondhand sellers say that as the field is getting more crowded, they’re running into more speed bumps. Jon Hershman, a seller based in San Diego, California, with expertise in vintage sunglasses, has been working to move the majority of his sales offline — shoppers can try the products on, and there are fewer returns. And critically, navigating online takedowns has become a headache.

Though Hershman’s products are authentic vintage, dozens of sunglasses have been removed from his store’s Instagram shopping feed, with Instagram citing third-party infringement. He says some brands tend to get flagged more, like Christian Dior and Yves Saint Laurent, but removal is sporadic — some sunglasses are allowed to stay up, while others from the same brand are taken down. Requests for Instagram to review the removals are denied, he says.

Instagram says the takedowns are intended to remove counterfeit products and make the platform a trusted place to shop. “Although we do our best, and every appeal is reviewed by a person, we know we don’t always get it right and are always working to improve our approach,” Stephanie Chan, a spokesperson for Meta, which owns Instagram, tells The Verge.

Online vintage and secondhand sellers describe a delicate dance they must do in order to stay in business — and that even when they follow the rules, their shops are at the mercy of the platform-specific policies and the rights holders. Montana Bowman, a longtime Etsy seller who specializes in vintage hats and clothing, got IP infringement strikes every so often as his business grew over the years. To get his products restored, Bowman has to reach out to the brand directly, convince them the product is used and authentic, and get them to notify Etsy the IP claim is withdrawn. But not every brand returns his emails — a particularly frustrating situation involved a hat from a company that makes truck parts, named Supreme. The other Supreme, the famous streetwear brand, claimed infringement, despite being the wrong company, and never responded to Bowman’s inquiries, he says.

Then this summer, Bowman got strikes resulting in the removal of three products — a vintage hat by Mack Trucks (now owned by Volvo) and two Jack Daniel’s baseball caps. In late September, still waiting on a response from legal teams, Bowman logged into Etsy one morning to start work only to find a big red banner saying his store had been suspended. (Another seller recounted getting a final warning before possible suspension the day before his wedding.)

Bowman was eventually able to get his shop restored, but only after hiring a lawyer to communicate with Etsy. Bowman went weeks without his store, resulting in thousands of dollars in lost income.

“It’s so easy to take something down,” he says, “And it is so, so, so difficult to get something put back up.”

Etsy declined to comment on the record for this story.

Legal experts point out that what sellers are doing is allowed: you can resell items you’ve purchased, whether it’s a 30-year-old commemorative T-shirt or a sweater you found at the thrift store that still had the tags. According to the first sale doctrine, once the original owner sells a product, you don’t need their permission to resell it as long as you’re honest about the condition and its provenance, says Yvette Liebesman, a professor of law at Saint Louis University. These legal sales can get caught in a net cast by brands that have a financial incentive to search for counterfeits or unauthorized resellers through takedowns. Small businesses often have no recourse even if they know their sale is legal.

Aggressive — and at times unfounded — infringement takedowns aren’t simply an attempt by corporations to claw back lost sales, says Liebesman, who has written about IP takedowns on resale platforms like eBay. They could also be used to attempt to change the law. She points to two pieces of pending legislation that, if passed, could significantly alter the resale landscape — making it harder for small sellers to operate — under the guise of anti-counterfeit protections.

The INFORM Consumers Act, supported by Amazon, Etsy, and eBay, would require online marketplaces to take additional steps to verify the identities of high-volume third-party sellers. Meanwhile, the SHOP SAFE Act — which has received pushback from online selling platforms — would open platforms up to lawsuits unless they take certain steps to prevent counterfeit products. But Liebesman and critics of the bill say the legislation as-is could end individuals’ and small businesses’ ability to sell products online.

By racking up takedown notices that are hard for small shops to fight, Liebesman says companies could be “trying to create a climate to encourage Congress to ‘do something’ about this huge problem that they are manufacturing.”

“Anytime you buy a resold good or a used good, that’s one you’re not buying from the manufacturer,” she says. “They don’t want the competition of people buying used goods or resold goods.”

Cases where small sellers begin the legal process are few and far between, according to Liebesman. One oft-cited example is the story of Karen Dudnikov and Michael Meadors, who operated on eBay under the name Tabberone selling crafts made from licensed fabric. Tired of having their listings removed for infringement, the couple tangled with Major League Baseball, Disney, Mars, and other corporations, seeking declaratory judgments that allowed them to keep their storefront open while representing themselves in court.

Reached via email, Dudnikov says that when she and her late husband began challenging the takedowns in the early 2000s, there was very little information online about what their options for recourse were. Worried they would go bankrupt, they felt they had no choice but to defend themselves.

“I don’t think I should have had this experience,” Dudnikov says. “Companies know what the law is, but they use their corporate lawyers as bullies to control the secondary market.”

Without the money or time to engage in legal proceedings, many entrepreneurs don’t have many options but to accept takedowns, says Lynnise E. Pantin, a Columbia Law School professor who runs a clinic counseling small businesses pro bono. When faced with a copyright takedown they believe to be mistaken, sellers have the option to counter-notice, which formally begins the legal proceedings — meaning a seller is opening themselves up to a lawsuit from the company in question.

“A lot of people just decide, ‘I’m just going to do what they tell me to do,’” she says. “It’s like the typical David and Goliath story.”

In Myers’ case, tangling over the influencer-branded fashion line, she eventually met with Bernstein in person, coming to a handshake agreement on how to move forward. The saga was a lesson for Myers, who says she now realizes the letter from lawyers was an attempt at bullying her smaller operation into complicity. (Reached for comment, Poshmark director of corporate communications Kelly Mason pointed The Verge to the official infringement policy. “We’re glad that the two parties came to a good faith resolution on the issue,” Mason said regarding the WeWoreWhat dispute.)

The shift towards secondhand shopping has been a boon to resale apps and sellers, but many small businesses feel increasingly inched out. A flurry of takedown threats can spread panic in the seller community — last month, many sellers on TikTok realized they had all received the same email from Shopify, notifying them that the platform found branded or trademarked goods in their shop. Sellers were required to fill out a form acknowledging the products and attesting they were genuine or risk losing their stores. (Earlier this month, Shopify was hit with a lawsuit in which major publishers alleged it was allowing pirated textbooks and other learning materials to flourish on its platform.)

And while sellers say they’re happy any corporation is trying to divert waste and put usable products back into closets instead of landfills, there’s a difference between the stay-at-home mom who removes a stain just to make $15 on a dress and the company that just began to turn towards resale.

“I don’t think they ever really cared until recently,” Myers, the Poshmark seller, says. “Until they saw the money.”

Policy

An OpenSea bug let attackers snatch Apes from owners at six-figure discounts

Tech

AT&T’s new 5-gig and 2-gig fiber internet is here, starting at $110 a month

Tech

Meta has built an AI supercomputer it says will be world’s fastest by end of 2022

View all stories in Tech