posted on October 19, 2000 07:42:05 PM new
Dear Reamond:
Thank you for your input...I will have to wait until morning to quiz my dad again about this. BTW-the "infamous" corporate lawyer went to Dartmouth and Penn, was VP of Radio City Music Hall, Inc., an Executive vice president at CBS music, and Deputy Attorney General of the state of Pennsylvania, not too mention having negotiated with Disney more than once. I'll let him know that he needs to brush up....
posted on October 19, 2000 07:49:30 PM new
But isn't it true that the courts have often sided in the favor of consumers screwed by contracts that are forced upon them, and that are generally at odd with accepted industry practice? Micky Mouse toys are not $300 pieces of software, houses, or securities. Those items all have huge regulatory frameworks and accepted standards and practices that define that sale and transfer.
I could interprete California's Uhruh Civil Rights Act (which prohibits arbitary discrimination) to claim that Disney is discriminating against on-line customers by applying a more more restrictive sales contract to them, that what it applies to its retail store clients.
[ edited by eoi on Oct 19, 2000 07:51 PM ]
posted on October 19, 2000 07:52:47 PM new
Reamond: Well, since we're really not talking about the secondary sale of proprietary goods or conditional transfers of property, I think your analogies may be outside the scope for comparison.
Also, PC software can in most cases be resold by the original licensee whereas the offering of such material includes the original vehicle for transfer and the original copy has been eliminated from the primary host (PC). And No, it is not necessary to sell the PC with the software.
Your second paragraph said it best:
"The issue with the Disney situation is whether in a casual retail transaction this condition is enforceable, especially when the condition is buried on another page."
Well, that is the question, and the answer is that it is not enforceable. It is, however, ridiculous.
posted on October 19, 2000 07:56:21 PM new
Eoi:
I agree with you. I am no attorney, but I can only deduce that there is a tremedous difference between Windows 98 and a Goofy figurine...it is quite obvious that we are talking about apples and oranges here. Now, if you were to compare this to say Fenton glassware then it would make sense. Could you imagine going on the Fenton site to purchase their "collectible" glassware only to read a disclaimer that you or your heirs could NEVER resell it? Sounds insane...and I deduce that the corporate lawyers at Disney must have had one too many martinis before they drew that one up.
Edited to add: Sorry about the diatribe about my dad...just didn't want anyone to think he was a slouch!
[ edited by oldstuff on Oct 19, 2000 07:58 PM ]
posted on October 19, 2000 08:00:30 PM new
"But isn't it true that the courts have often sided in the favor of consumers screwed by contracts that are forced upon them, and that are generally at odd with accepted industry practice? "
EOI: You're absolutely right. The difference however is in that this is not a contract. There is no express or implied fiduciary responsibility accepted by, or on behalf of the consumer. This is simply a case of some knucklehead writing something ridiculous down in the hopes that he/she/they will deter the majority of sellers from trying to resell the merchandise that is purchased on Ebay. All they really want to do is TRY to keep from being competed with inside of the same auction house. Its that simple, as I see it.
posted on October 19, 2000 08:11:14 PM new
HavaJa: "I am a bit confused by The reasoning that Disney is using. If they sell items that cannot be resold in a secondary market,the objects have no collectible value.
Why would I spend $1,000.00 on an item that I can never sell. "
Love it, right on!!
So the Walt Disney Company is in effect saying:
"Hey, our collectibles are worthless!"
And in that case, why would anyone buy them?
Vinnie
[ edited by capotasto on Oct 21, 2000 08:16 PM ]
posted on October 19, 2000 08:15:17 PM new
I have yet to meet a good lawyer that didn't like to try to bluff their way into or out of something.
Think of it this way. The lawyer who wrote the "take it to your grave with you" clause could have known it was unenforceable and generally worthless, but figured that it really didn't matter because he was playing the odds that it would deter a least some people from reselling.
Reminds me of the disclaimer some Spammers include in there junk about "This cannot be considered Spam under HR XXX passed in May 1999."
What a bunch of crap. There was no corresponding Senate bill and the President didn't sign it into law, so it is just another House bill that went no where. But the Spammers play the odds that a lot of people won't know this.
posted on October 19, 2000 08:16:05 PM new
We could really have some fun here with with a restraint of trade issue. California has some pretty serious laws about companies banding together to lock smaller merchants out of the market.
Consumers could complain that Disney is defrauding them by reducing the liquidity of their investments in collectible merchandise by restricting their access to secondary markets.
posted on October 19, 2000 08:18:45 PM new
Several people have said that they think this is illegal. Yet this is exactly what happened with merchandise of the late singer Jeff Buckley. Jeff's mother used the Vero program to shut down all sales of Buckley items. Jeffdefender now offers merchandise for sale but all merchandise is considered "promotional" and may not be resold on ebay.
(It is ok for me to use the details since Auctionwatch has had articles about this, and other threads have mentioned Jeffdefender since they had been invited to ebay.)
All Disney has to do is use the Vero program to shut down auctions. And ebay will let them.
As for this being illegal or not, each and every auction contains a link that reads, "Conditions of sale."
Here is the link. Sorry I don't know how to make it a link, you will have to copy it your browser to go there.
http://ebay.disney.go.com/dacos.htm
The first thing it says is:
"Each item of merchandise ("Item" ) purchased by a buyer ("Buyer" ) through the Disney Auctions Site shall be subject to the following conditions of sale (the "Conditions of Sale" ), which Buyer hereby agrees to as a condition to such purchase. Disney Auctions ("Disney" ) reserve the right, at its discretion, to change, modify, add, or remove portions of these terms at any time. Please check these terms periodically for changes."
To be able to bid, a bidder has to agree with the conditions of sale. Therefore if a bidder tried to resell an item, Disney can legally enforce their policy.
Disney has some of the best lawyers in the country working for them. Time and time again, people have been hurt in the park, yet when they have been sued, they win almost every case.
Bottom line, in my opinion, if you buy an item from their site, don't think you will be able to auction it on ebay in the future.
Mickey really is the Anti-Christ (statement not meant to offend, again only my opinion)
Kelly
[ edited by kellyb1 on Oct 19, 2000 08:54 PM ]
posted on October 19, 2000 08:21:59 PM new
"Consumers could complain that Disney is defrauding them by reducing the liquidity of their investments in collectible merchandise by restricting their access to secondary markets. "
EOI: I'm gonna keep saying this for the sake of those who come behind us to read these posts, until I get too tired to type. No one has to argue restriction of secondary trade because there is no restriction to speak of. The clause is garbage; it doesn't exist. The only one to stop free trade at this level is the person who abides by the legalease nonsense of the clause, and even then, they only stop themselves.
I remember when TY was accused of manipulating the secondary market by retiring beanie babies too fast. They replied that since they don't profit from that market, they would be no reason to try and manipulate the market.
At the moment you can buy Disney service pins, but if you where them in Disneyland to trade, the security will ask you to remove it from your lanyard. I asked how they could justify that, and the reply, "The service awards are the property of Disney, and since this is private property, Disneyland sets the rules."
posted on October 19, 2000 08:34:23 PM new
Kellyb1: While I am not familiar with the Jeff Buckley situation, I imagine the Vero arguement was based upon the resale of intellectual works with proprietary ownership still intact. You can't do that with a Mickey Mouse mug, or a goofy stuffed doll.
Now if you tried to resell the Disney logo, or lease its likeness for commercial gain, then Disney would have a case. But you simply cannot enforce a "no resale" clause on retail merchandise, particularly when the company has been lawfully paid for its purchase.
And, for what its worth, the tobacco companies had pretty powerful lawyers too. Its only a matter of time, and enough people standing up for what is right to change unjust laws and practices.
posted on October 19, 2000 08:47:56 PM new
Well is look like it is boiling down that that lobbyist created mess called the DMCA & NET. Both of those where created to serve the needs of the sofware and publishing industry, with little though.
It is getting pretty clear that Congress screwed up is letting lobbyists write those two laws.
Either they need to be amended or something with some money is going to have to sue. It is too bad that ebay will not using a billion or two from petty cash to buy a few Congresscritters and lobbying for laws to protect us for abusive Bucklymoms, Mouses, and Fashion Designers.
Yahoo has the backbone to stand up to DMCA goons... why can't ebay? Even little Napster has more guts them Meg.
posted on October 19, 2000 08:53:27 PM newSeveral people have said that they think this is illegal.
Legally unenforceable. Not illegal.
What eBay "enforces" with the VERO program is only mildly associated with what is legally enforceable.
Such is legal reality in America.
For what it's worth, it goes both ways. A whole lot of legally enforceable measures are ineffective against penniless defendants, "balancing" the actual grief caused by people waving legally worthless contracts.
posted on October 19, 2000 09:14:14 PM new
sg52... I was dreging thru the califonia business and professional code looking for something, and just in passing there are alot of laws on the books that prohibit a wide range of activity designed to harass smaller companies out of a marketplace.
The problem is of course that the smaller companies never complain to the State nor do they have the resources to sue themselves.
This could really go to far... You could have estates sueing to stop the sale of autographed items. As I mentioned earlier, BMG music is trying to put a no resale clause on the CD Club, publishers could start to claim that you can't scan the cover of a book to sell it on ebay, etc. Eventually the consumer will loose the right to actually own anything. You'll have a dishwasher licensed from Maytag.
[ edited by eoi on Oct 19, 2000 09:15 PM ]
posted on October 19, 2000 10:05:37 PM new
I don't think the Disney people read the First Sale Doctrine regarding copyright. "The first Sale Doctrine states that once a copyright owner sells a copy of his work to another, the copyright owner relinquishes all further rights to sell or otherwise dispose of that copy." http://www.bc.edu/bc_org/avp/law/st_org/iptf/headlines/content/1998040801.html Basically, the First Sale Doctrine prevents an owner of copyright in a work from controlling subsequent transfers of copies of that work- meaning that once the copyright holder offers a copyrighted item for SALE, he loses his right to control it's distribution.
I don't think the eBay VERO's have read it either. The problem is finding someone who is willing to DO something about it!!
posted on October 19, 2000 10:43:56 PM new
Damn you're good...
That is so good I've bookmarked it, and when ever I see someone ranted about how they legit auction was nuked by ebay... I'm going to suggest the file a consumer affairs complaint and reference that.
I'm sure there are some legal "buts"... but... its a good hammer to use.
We do have big allies... Used book and record stores, I'm sure have their own trade associations.
Alot of us sellers on ebay are 2nd hand dealers, and we could all get really screwed if first sellers can monopolize the market thru DMCA and NET
posted on October 19, 2000 10:58:24 PM new
Hello eoi. We had a great discussion on AW over a year ago concerning copyright law which involved oldstuff's father who is a retired corporate lawyer. I bookmarked the thread for future reference and thought you might enjoy reading it since it contains some very useful info. http://www.auctionwatch.com/mesg/read.html?num=2&thread=46071&id=46071
posted on October 19, 2000 11:24:49 PM new
While it may seem like the "First Sale Doctrine" would keep Disney from using the "conditions of sale" in their auctions it doesn't.
The "First Sale Doctrine" only involves copyright laws when an American company sells something to a foreign country.
You can't take this law and try to use it for the Disney Auctions. They are two different things.
posted on October 19, 2000 11:26:22 PM new
Hi all:
What I suspect is going on here is disney is seeking to assuage their wholesale distribution chain as the prices they're probably charging are far below 'retail' and maybe even close to wholesale.
As such, they have existing agreements with others in their retail chain and they are 'concerned' someone might come in and buy a bunch of a product.
Since they may offer a retailer or wholesaler -- say a disney shop at an airport -- an 'exclusive' -- they are seeking to prohibit a competiting store in the airport from buying goods here at auction and then selling these goods at retail in competition.
Bottom line, you buy 2 dozen mickey mouse watches here and they may keep an eye on you to make sure you're not going to resell them in your shop at the airport in Orlando.
Buy two and sell them here and it is not a 'commercial' effort ... or at least one worth the time and effort of enforcing.
posted on October 19, 2000 11:58:53 PM new
So many questions, so many issues.
I think Disney may be using this no resale condition to prevent someone from buying up all of a particular item on their Net venue and then reselling them on another Net venue for a much higher price, thus cornering the market.
Conditions on a sale for limiting use, possession, title, and resale, are enforceable in many circumstances. Car dealers purchase cars from manufacturers and are limited by geographic area for resale. Many have complained about CDs and VHS tapes being VERO'd on eBay because the items were distributed as not for resale. Works of art are "donated" or "given" to museums under contract as long as the piece is not dispossessed or sold by the museum or the property goes back to the donor or heirs, or some other entity.
The transference of "property" may or may not include or in varying degrees a "bundle" of rights and privileges inherent in that property. The best example is real estate. Renters do not "own" the residence they rent, but have certain possession interests in the property [ejectment,residence, enjoyment etc.]. In real estate, we have a single entity of the real "property", yet we have at least two apparent interests being held simultaneously in the property by two different "people" defined by agreement, possession by the renter and ownership/deeded title by the landlord.
This right of resale only with permission or other conditions is very common between commercial interests, but less common among retailers and consumers.
Regarding software, I presently have disks for three different Windows OS from three different PCs I have purchased new over the last 10 years [ Win 3.1 Win 95, Win 98]. Under the user sale agreement, I can not sell any of these disks unless the PC which the disks came with goes with the disks. The OS software was purchased with limited use and resale as a condition of the sale and use of the software. The sale/use provision of the software is only for the PC it came with. I would be in violation of the software license to sell my Win 95 CD without the PC it is licensed to.
So as you see, rights in property can be limited in the transfer thereof. It is not always as simple as "If ownership passes from A to B, then A can't lawfully restrict B from selling it". If selling "it" means selling the possession and title to the property [ as ownership is generally defined ], A's sales contract can certainly limit what may be done with the property. "A" can retain a life estate in the property, "A" may have a 10 year lease to another party on the property, which prevents the possession rights of the property from being transferred, etc. This is commonly done with movable or personal property by using the term non-transferable in the sales contract. Airline tickets are a prime example.
It seems Disney is selling a possession interest in the items with a limited title to the items.
posted on October 20, 2000 12:00:34 AM new
Neomax,
So far, most of the items for auction on the Disney site is either secondary market items no longer sold for retail, props, which were never sold for retail, and many items that ahave been sold at Disney Theme Parks or The Disney Stores, (some items are still being sold for retail), which are all owned by The Walt Disney Company.
In addition, Disney has been liquidating merchandise for years. Most of these items have been sold at Disneyana shows, or auctions, yet Disney continues to liquidate merchandise.
It is true that any retail store can not sell Disney mercandise for retail unless they are licensed to do so. For example, stores like Target, Toys R US, or other retail stores have to be licensed to sell Disney. The exception is collectible dealers, since the items they sell are considered secondary market and not retail merchandise.
Also, the prices started low, but many of the items are up to the retail cost or over the retail cost.
Several of the expensive items that I have looked at that have reserves that have not been met, are over what the wholesale cost whould be. Generally, retail is 100% mark up of wholesale items.
Because of the reasons that I just stated, I don't think Disney's reasoning has to do with other Wholesale or retail sellers.
posted on October 20, 2000 12:17:40 AM new
csteve1781 said: Well, since we're really not talking about the secondary sale of proprietary goods or conditional transfers of property, I think your analogies may be outside the scope for comparison.
But "secondary sale of proprietary goods" and "conditional transfers" are exactly what the issue is about regarding the "conditions of sale" page linked to Disney's auction page. My analogies exhibit that these things are commonly used and enforceable.
posted on October 20, 2000 03:31:50 AM new
*cough* Monopolic Practices...*HACK*...Control of the Marketplace....*WHEEZE*...pay no heed to my words....*ACK!!*
:\\\"Crystalline Sliver cannot be the target of spells or abilities.
posted on October 20, 2000 04:52:48 AM new
This thread is a hoot for anyone who has lived in the Disney World greater area.We have long known what Disney is or is not once Walt retired (very similar to ebay going public!)
There was a time when we bought up Disney items at Orlando yard sales for the kids and grandkids as gifts and also so they didn't have to pay the outrageous prices at the park when they came down to visit.You could even buy new t-shirts off property for 1/3 of the Disney price but that has probably been stopped now.
Disney donated it's returned merchandize and it's discontinued items to the Salvation Army where we could fill a large grocery bag for $5, That has probably also been stopped.
Disney is tolerated by Floridians because of the taxes it pays and the tourists it brings which we hope will spend money at other locations. They were also giving us half off the tickets in their off season just to get us there.
Ok, I've gotten off topic. Let's just say don't count on selling those new Disney items on ebay.
posted on October 20, 2000 04:57:15 AM new
Oh yeah, I get this mental image of men in suits going from Orland yard sale to yard sale checking to make sure they aren't selling their Disney items for 50 cents. ROTFLMAO
posted on October 20, 2000 08:44:34 AM new
Please notice that the prohibitions for resale are under Section 5 "Recissions". I'm pretty sure that means that once you have done any of the prohibited things, you aren't eligible for a refund. Normally you would have a year to rescind the transaction (under their terms) for a misstatement of condition. Did anyone think to read the entire Conditions Page before proposing boycotts and retribution? Disney business practices suck, true, but at least read what you are complaining about before leading the lynching!
posted on October 20, 2000 09:46:22 AM new
Going off topic a bit into the OEM software... The restriction is that it has to be sold with the original computer, but what is defined as the original computer? If you upgrade do you lose the right to resell it with the software or if remove parts from the computer.
Personally if I had a CD like that, I would scrounge up a Pentium-75 chip, and state that the P75 is the original computer... Or i guess you could say P75 Chip w/ Windows 95 .
Has anyone considered the possibility that old CDROM might be collectible in the future because of their rareity or the CD artwork. Just imagine in 20 years their could be a market for "1st Edition AOL CD" or "RARE! Win 3.1 CD!"
posted on October 20, 2000 10:03:45 AM new
kellyb1-
The service awards are the property of Disney, and since this is private property, Disneyland sets the rules."
I don't know what kind of pins you are talking about, but the service award pins I have are most certainly not the property of the Walt Disney Co. Whether or not they would allow you to wear them on their property is a different question, though.
posted on October 20, 2000 10:33:11 AM new
I liked Disney stuff as a kid, but as an adult, I find their "happiest place on earth" stance repellant due to what I know about their manufacturing processes. I have worked in the garment/textile industry here in Los Angeles and I am aware that they send out those cute little t-shirts and stuffed toys to be assembled in third world countries by children of the same age that are prodded to beg for the stuff here in the U.S. Imagine being a child in Bangladesh (or wherever---they move their sweatshops to where ever they can find people desperate enough to work for 20 cents a day)assembling toys, working 10 hours a day to make a crappy piece of plush and stuffing that he would never be able to afford to play with since a single stuffed lion costs several weeks of his wages. But people want their fantasies. They like to "relive their childhoods" with these things---and the realities be damned.
My small relatives all know why I won't buy them Disney things and they are horrified to know that a company could speak with such a forked tounge. We all know that many companies use sweatshop labor----I'm aware of dozens of big names manufacturers that do. I try to avoid as many as I can. However a person can only do so much---and what I choose to do is to direct attention to the most egregious offenders. The reason I single out Disney for exposure in this way is that they bill themselves as the most child-friendly, loving, happy, save-for-two-years-so-you-can-feel-the-magic corporations on the planet.
