posted on September 6, 1999 11:07:28 PM new
Hello AW Community:
As I mentioned yesterday in the Jeff Buckley thread, I thought any info that my father, a lead entertainment attorney and corporate attorney, could lend to this forum might be of some help. I spoke to him today and we thought that maybe anyone interested could pose some questions ahead of time and he could answer them on Wednesday afternoon. We spoke at length about not only the concerns over this particular situation, but Ebay's actions and reactions, and what the contract we as sellers have with them really means. Hope you all have some questions as I am sure that he will be able to answer many.
Just some background on my father:
Legal counsel for RCA, Vice-President and chief legal counsel for CBS, and former vice-president of Radio City Music Hall, Inc...just to name some. I know I am prejudiced, but he really is a wealth of knowledge in this field. He is very interested in all that I have told him, and looks forward to deciphering all of this to the best of his ability.
posted on September 7, 1999 12:50:39 AM new
Questions...
Can promo CDs be sold by individuals who have aquired them as giveaways from radio stations or from other similar sources?
Can promos be sold by individuals if they were purchased from other individuals, for example at a garage sale?
Can other promotional material, like posters, key chains, etc received from radio stations, record companies etc be sold by individuals who received the free items, or who bought the items from another individual?
Are there any restrictions on selling used records, CD's, tapes, as long as they are the original item and not home made (bootleg)copies?
What is your opinion on eBays interpretation of the millenium act as applied to their Vero program?
Do you think eBay is vulnerable to a class action suit by the users whose auctions have been negatively impacted because of eBays implementation of VERO?
Do you think jeffdefender(as a nickname for the estate parties involved) is vulnerable to law suits for auction interference?
Do you think jeffdefender is vulnerable to a suit for improperly imposing claims of copyright infringement where there was no such infringement?
Well that should get you started!!! -Rosalinda
(edited cause it is nigh on to 4AM, and I need some sleep cause druther is at my heels!)
[ edited by rnrgroup on Sep 7, 1999 12:55 AM ]
posted on September 7, 1999 02:31:35 AM new
Kewl! Here are some more questions to build upon those already listed:
Does it affect a person's right to resell if the promo CD has "Promotional Copy Not for Resale" stamped on it or not (as opposed to having a removable label saying same)?
Is there any way the JeffDefenders could legally control the use of Jeff Buckley's name to sell fan art, poems, etc.? How does it affect the situation that they called for fan art to be developed (on their website)?
Would the situation be different if Jeff was alive and had control of his name?
Legally, is there a difference between use of Jeff Buckley's name (e.g. Barry's poem) and his image?
How does it affect the situation if the fan art, poems, etc. simply mention Jeff Buckley in passing or say "inspired by Jeff" (e.g. Ross's pictures of Jeff Buckley's soul) as opposed to having Jeff Buckley be a key part of the artwork (e.g. a computer generated image of John Buckley)?
And regarding Rosalinda's question about class actions, would eBay be more vulnerable to individual suits rather than a class action for improper auction removal based on erroneous Vero claims?
[ edited by netlawhopeful on Sep 7, 1999 02:32 AM ]
[ edited by netlawhopeful on Sep 7, 1999 02:34 AM ]
posted on September 7, 1999 04:49:33 AM new
G'day and Thank you Old Stuff,
My suggestions:
Can the copyright holder control the use of an artists name if used as comparison in a review situation?
Can the copyright/content holder control the production or sale of original artworks that simply reflect aspects of the artists life without quoting lyrics or infringing trademarks,etc.?
Do you consider that the VeRO program as interpreted and set up by Ebay is infringing on the rights of genuine sellers or are they obligated to act this way under the laws governing electronic communications and the internet (see other areas for more precise acts)?
posted on September 7, 1999 06:30:47 AM new
I don't have any questions not already covered, and I am very interested in the answers. I imagine there are a lot of lurkers like me. So don't be surprised if there are more "listeners" than "talkers"
Victoria
posted on September 7, 1999 09:00:04 AM new
Hello again:
Glad to see some interesting questions! The suggestion for a posted time that my father will be here is well taken. We have made the time of tomorrow, Wednesday at 6PM Eastern Time. He will put his best effort into answering the questions at hand!
posted on September 7, 1999 09:11:49 AM new
To clarify the resale question, how does the legal system resolve conflicts between swag and other promotional items marked "not for resale" and the UCC which guarantees the right to resell physical goods in one's possession?
Couldn't any manufacturer, then, just start stamping "not for resale" on all of their products, as a way to force consumers to buy directly from the manufacturer or authorized agents?
Assuming that it is a violation of licensing agreements, what are the consequences for an individual Ebay seller?
Another question, off-topic, but the opportunity is here. I'm a member of the BMG Music Club and buy most (80%) of my CDs through the Club. I had always thought that the reason for the substantial discount was the special brand imprinting -- that is, you can manage supply and demand efficiently, burn only the CDs that you need, and control costs. I read an article, though, where Hootie and the Blowfish was hacked off because music clubs don't pay royalty fees to the musicians. Is this true? What is the standard licensing agreement for a musician for BMG, or any music club in general? If I buy a CD through BMG, how much does the artist receive?
posted on September 7, 1999 09:40:42 AM new
Would your father give his permission for any of his postings to be quoted e.g. in communications with eBay or its legal department? (If so, presumably your father would want some sort of disclaimer added?)
posted on September 7, 1999 09:47:42 AM new
Hello Oldstuff and Father.
A question for the corporate side. If ebay claims to be a venue and only a passive provider of a service, can a individual in California get a temporary restraining order to stop actions that seem to violate that claim. Two examples would be the Vero program and taking an active part in our auctions by revealing reserves or requiring us to set a minimum bid as a percentage of the reserve. It seems to me they can not be a venue if they take an active part in auctions or interfere on behalf of another without any recourse available to the person who's auction was interfered with on behalf of the Vero participant.
posted on September 7, 1999 05:51:58 PM new
Well...after looking at the subject title I can't believe that I misspelled Lawyer!!! Blame it on exhaustion and running a 4 day, 11 hour a day antique show. Anyway, please don't forget to post your questions as my father will be here at my computer board tomorrow at 6PM EST to answer as many questions as he can! Hope this helps.
posted on September 7, 1999 06:10:05 PM new
Oldstuff; Thank you for this great opportunity! Of course, my thanks also to your father. I have 2 questions...
1: When selling trademarked items, should we be including a comment that says
"XXX is a trademark of xxx.corp"
2: Does a website like ebay have an obligation to tell affected users (those whose auctions are canceled) about any appeals process included or stipulated in the DMCA?
I seem to recall there being a "put back" provision if the user appeals, unfortunately, I'm not sure about that.
Thanks in advance for any clarification you might offer.
posted on September 7, 1999 06:36:14 PM new
Hello oldstuff
I would like to thank you and your father for this rare oportunity to speak with a person who can give us helpful concise answers.
My question is I have created a terms of sale that is included with my listings as of today.
In the subject line along with the small description I add RESERVE.
These are my terms of service;
Please read this before bidding on any of my items.
TERMS AND CONDITIONS
<><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><>
This auction listing has a reserve price of $240.00, if you intend on bidding on this item you must email me and agree to abide by my terms of sale.
(1) If I do not recieve your email then your bid will be considered null and void, and will not be accepted by me.
(2) By sending me an email agreeing to my terms and conditions you agree to abide by my rules as follows;
(3) In conforming with ebays agreement terms which advises the seller should explain there terms of service so there can be no missunderstanding, I have created these terms of service.
(4) Your bid is a binding contract to purchase my item.
(5) I reserve the right to end this auction at any time if anyone retracts a bid, even if that bid is retracted at the last moment of the sale.
(6) The only way I will recognize a winning bidder is if that bidder has met or surpassed the price listed in this agreement.
(7) If the auction has not met with my reserve price listed in my terms of agreement then there will be no winning bidder.
(8) Due to the fact that I intend to pay my fees to ebay no matter if the item sells at my reserve or below my reserve makes this is a legal sale.
(9) I reserve the right to discontinue this auction should their be another eBay outage at any time during its duration, This is to be fair to all bidders as well as protect my investment. Due to eBays outages etc.
(10) Money orders preferred, merchandise held till personal checks clear, Buyer pays all shipping and Insurance. All my auctions are quoted in U.S. dollars, I will not do bank transfers so please do not ask me too. We only charge for shipping and insurance, we never add handling. All S & I charges under 50 cents are rounded down to the nearest dollar, and over 50 cents rounded up to the nearest dollar. New York residents add 8-1/4% tax. We will only ship to persons outside the United States who are willing to pay for full insurance as well as duty etc. Please ask as many questions as you may need before bidding as all sales are final Unless the item has been missrepresented. Please do not bid if you do not intend to buy! I will give you negative feedback and report you if you don't take this serious. Thank you and happy bidding!
I advise you do not wait till the last moment to bid or you may lose the chance to bid on this item!
Thank you in advance, I will be here tomorrow watching and listening. Barry
posted on September 7, 1999 06:44:51 PM new
ooops I forgot to ask if that is legal and can ebay find something wrong with it..I started the auction at $5 but as I said I tell people in the subject line there is a reserve.
posted on September 7, 1999 06:45:43 PM new
oldstuff, don't feel bad about the misspelling. A major chat site for law students, run by a well-known test prep company, had "Think like a Laywer" up on its site in big bold letters for months. Perhaps we should recognize it as an acceptable alternate spelling.
I hope the Dad Q&A thread will stay up because I don't think I will be around at precisely the time you noted and I definitely want to see this one.
I'm a little concerned, though, about your dad getting in some sort of legal trouble over this. I would assume/hope he has consulted with his own attorney about what disclaimers, if any, might be needed to protect him from potential liability.
posted on September 7, 1999 08:14:11 PM new
I hate to get off topic, but it will be just for a second. The comment about the misspelling "laywer" reminds me of a time about 7 or 8 years ago when I was at a UCLA football game at the Rose Bowl. Well into the first quarter the scoreboard said "ULCA". Now if you can't spell UCLA you've got a serious problem!
posted on September 7, 1999 08:34:29 PM new
aurorah:
The only reason that I did not put my info is that I was hoping to avoid spam and any nasty e-mail to me from the Jeffdefenders. But, if it makes you feel better I will include it. I assume that when I click Show Signature that that should take care of it. If not please let me know what to do.
---
posted on September 7, 1999 08:41:11 PM new
Thanks oldstuff. I understand your concerns. After discussion with a few others that also post here, the concensus was that anonymous posting lends itself to suspicion. Your revealing your user information should put any doubts to rest!
posted on September 7, 1999 09:12:16 PM new
lol Julesy you took the words outta my mouth. I just didn't have the gumption to open that cans of worms. I hope that if bgross responds and it is not a joke that he opens a new thread. (So I can dream, right?)
[ edited by aurorah on Sep 7, 1999 09:16 PM ]
posted on September 7, 1999 09:15:37 PM new
Aurorah:
Now that you mention it, I clicked on my name and guess what? My info is not there. I gave it when I registered and it was on the old site but not this one. Anyone else have this happen to them? How do I go about putting it back in?
posted on September 7, 1999 09:50:18 PM new
Aurorah:
Yeah, I know. I've been checking my e-mail every day for a harrassing letter from Jeffdefender, like the others havebeen getting, and lo and behold I find out they can't even find me! One of those letters will someday bring as high a bid on eBay as one of Ross' drawings. lol
posted on September 7, 1999 09:55:08 PM new
Maybe we could just ask jeffdefender to post the info here. It seems she's got the personal info on just about everyone by now.
posted on September 7, 1999 10:00:59 PM new
Barkrock...They're too busy to do that. They are on the way to your house. Have you figured out what you're going to do for refreshments yet?
