posted on August 1, 2002 09:35:59 AM new
I want to add that of course, anyone is welcome to add their opinions. But Jamie, please don't try to drag this talk over to your web site. I am definitely not interested in that.
posted on August 1, 2002 10:18:13 AM new
RB- Who says there is a crime being committed ? Anyone that sends eBay an email or calls them on the phone reporting a "crime" means that eBay must investigate?
Congress knew that fraud and copyright infringement are crimes and decided that holding an ISP liable for these acts when committed by another party on their service should not cause liability to the ISP/venue. The venue could not operate if the liability applied to the venue.
The last court case eBay won was brought by the actual copyright holder who notified eBay about the infringing items. But he did not notify eBay in the manner prescribed by the DMCA. He lost his case.
The WWW would grind to a halt if hosts were held liable for content placed on their sites by other people.
posted on August 1, 2002 10:25:30 AM new
Hi twinsoft ...
First, we should agree on the topic of debate. I suggest the original topic ...
I could have some difficulty discussing the current eBay business "model", as I am not sure what their current "model" is. I do know that I have spent the last 30 odd years in the health care field and I get tired of hearing about all the new health care "models". Slightly OT, but to back this up, I got totally fed up during an executive meeting a couple of years ago when one of the VP's started talking about the new "model" for adult medicine, and when question time came I asked her when we were going to stop playing with models and start doing the real thing. Needless to say, I questioned myself right out of all future exec meetings (which is a good thing).
I suspect the term "business model" probably does have a meaning to you real life business folks though
If you're going to raise specific issues, they should relate to that topic. As in, "the sale of bootleg videos is contributing to the failure of eBay, etc."
Should that be part of the debate? I have a few other specific issues with eBay, and not just personal ones, but ones that I see a lot of eBayers having.
In some cases, I have what I think are fairly simple solutions. In all cases, though, my solutions involve the spending of money, which (just like in health care) no one wants to do - especially a business like eBay that exists for one purpose only.
Second, I'd really like to see this have a thread of its own. This thread is a dead horse. Would you mind greatly? If not, that's okay.
No ... works fine for me to have a separate thread. If OK by you, can you start the new thread when you get back this evening, and perhaps clarify the intent of the topic. I am sure there are others, like me, who have thoughts and ideas but who are not really business types and don't understand the business buzz words.
posted on August 1, 2002 10:44:53 AM new
REAMOND - Who says there is a crime being committed?
I don't think that all reports to eBay are legit ... not by a long shot. As a matter of fact, I'll best most of them come from sellers who are trying to eliminate the new guy ... exactly what appears to have happened to me. But, I do know my area of expertise.
Perhaps you can answer a question or two for me to help me understand your definition of crime:
1. Are you aware of the current activities being conducted by George Lucas wrt to the sales of bootlegged copies of his "Star Wars Trilogy"? It's been all over the net for the past few months, in the news, and in the industry magazines. I don't believe there could be anyone who knows anything about movies who would not know about this.
2. Assuming your answer to Question 1 is "Yes", would you expect eBay's Copyright Lawyer (their expert) to know this as well?
3. Would you agree that the copying and selling of this trilogy without the express written consent of the Copyright Owner is a violation of law (ie. a crime)?
4. Assuming that eBay cannot or will not police their own site, do you think they should at least "investigate" a report about the illegal sales of this trilogy?
5. Do you believe that as of right now, there are over 400 listings for the "Star Wars Trilogy" under "DVD", and not one of them is legal?
The last court case eBay won was brought by the actual copyright holder who notified eBay about the infringing items. But he did not notify eBay in the manner prescribed by the DMCA. He lost his case.
That's bad news, but the verdict in that case had nothing to do with the crime ... it was the result of lawyering and those who can find the technical loopholes usually win. Did you know that I can get drunk and beat the crap out of my wife, and get away with it? Does that make the result (my poor wife's broken nose) OK?
The current eBay stance is almost like saying ignorance of the law is a valid defense ... try telling that to a Judge next time you're the defendant in court.
Maybe the laws regarding WWW venues should be changed
PS - I don't for a minute believe that eBay "investigates" all reports. That's their rhetoric, not mine. If you send them a report, regardless of how silly it may seem, they will tell you "We will investigate your report".
posted on August 1, 2002 11:17:56 AM new1. Are you aware of the current activities being conducted by George Lucas wrt to the sales of bootlegged copies of his "Star Wars Trilogy"? It's been all over the net for the past few months, in the news, and in the industry magazines. I don't believe there could be anyone who knows anything about movies who would not know about this
Not right off hand. But I know what he can do about it.
2. Assuming your answer to Question 1 is "Yes", would you expect eBay's Copyright Lawyer (their expert) to know this as well?
I would expect eBay's "copyright lawyer" to advise eBay about the DMCA and how it applies to eBay.
3. Would you agree that the copying and selling of this trilogy without the express written consent of the Copyright Owner is a violation of law (ie. a crime)?
It is not handled as a crime unless the govt wishes to view and prosecute it as such. The govt has great discretion in pursuing copy right infringement.
4. Assuming that eBay cannot or will not police their own site, do you think they should at least "investigate" a report about the illegal sales of this trilogy?
It is fully within eBay's discretion to investigate or not anything posted by others on their site, not withstanding that the copyright owner or agent hasn't properly notified eBay to remove the item. Not every case of infringement is considered a crime. In fact the vast majority of infringement cases are civil matters in which it is up to the copyright owner to pursue the matter themselves.
5. Do you believe that as of right now, there are over 400 listings for the "Star Wars Trilogy" under "DVD", and not one of them is legal?
Whether they are legal or illegal, it is up to the copyright owner/agent to properly notify eBay to remove the items. Ebay, or any other ISP doesn't have a dog in the fight until they are properly notified as prescribed by law.
That's bad news, but the verdict in that case had nothing to do with the crime ... it was the result of lawyering and those who can find the technical loopholes usually win
It is not a "technical loophole", the result is exactly how the DMCA was designed to operate in order to protect ISPs. There would be no AOL or eBay today if the law didn't operate in this manner to shield ISPs from criminal and civil liability for acts committed by users of their services.
The current eBay stance is almost like saying ignorance of the law is a valid defense ... try telling that to a Judge next time you're the defendant in court
Ebay's stance is due to knowledge of the law, not ignorance. If the system operated as you seem to wish, ISPs would have to make a legal conclusion regarding every allegation they received about material on their site(s). The vicarious and direct liabilities would be huge if they did this.
posted on August 1, 2002 12:17:21 PM new
REAMOND ... Good responses, but a little bit too lawyer-y I think most readers will understand the point I am trying to make, whether it is called a crime, a civil matter or whatever else you want to call it. The simple fact is people are stealing stuff and peddling it on eBay, eBay knows about it, you and I know about it, and the thiefs are encouraged to keep doing it.
How much money would eBay lose if they ended all 400+ listings for the "Star Wars" bootlegs right now?
How much money would they have lost if they had a little more integrity and desire to protect their buying members and ended all of these listings that have already sold?
Another analogy ... suppose you were an artist and I saw someone stealing your art and selling it on eBay. Would you like me to report it? How would you feel if the gendarmes said "sorry Rob, it has to be reported by the owner of the art before we can take any action".
Your final statement The vicarious and direct liabilities would be huge if they did this may just be the answer. With so much crap, porno, SPAM and other nonsense on the internet, maybe it's time the laws were changed to make the ISPs and site owners responsible for what occurs on their sites.
I think for the purpose of simplicity the term "Business Model" simply means the current way that Ebay performs and is structured for its users and its current rules and guidelines. IE: It's fee structures, link rules, policies etc.
posted on August 1, 2002 12:45:17 PM new
I'll wear a blonde wig and heels and be Meg. It may be a little like Clinger on M.A.S.H but I'll give it a shot.
I'll bring my hand fan in case it gets hot ....
posted on August 1, 2002 01:04:02 PM newThe simple fact is people are stealing stuff and peddling it on eBay, eBay knows about it, you and I know about it, and the thiefs are encouraged to keep doing it.
There is obviously a public policy issue here. But there is another cost angle that I don't think you've considered.
If you make a personal acccusation about "crimes" and you don't have immunity, there can be situations where you are mistaken, and liable for damages. Just like the person who is publicly accused of shoplifting and the store security was wrong. There is liability for these actions.
When you make accusations about someone's products and the accusations are false, you can find yourself liable. There are some situations where even injecting "opinion" into someone elses business relations can bring about liability, regardless of the veracity of the "opinion".
Under the DMCA/VERO program, a copyright owner must supply a signed statement under threat of perjury regarding the accusation of infringement. Whether the accusation is true or false, this holds eBay harmless for the removal actions it takes as a result of the statement.
If we by-pass this owner statement requirement, where does that leave the ISP ? Are you suggesting that we allow eBay to remove or leave posted any infringing auction purely at their discretion ? And if this system were adopted, should eBay be held harmless for mistakes in removing auctions or mistakes in leaving an infringing auction up? I think it is clear why an ISP doesn't want this power. If the ISP is wrong in either case they face liability. At present, it requires a sworn statement by a party in interest to remove an infringing auction.
I think the system in place strikes a fair balance between the competing interests. The true adverse parties in these situations are the infringing entity and the copyright owner.
posted on August 1, 2002 01:42:08 PM newIf you make a personal acccusation about "crimes" and you don't have immunity, there can be situations where you are mistaken, and liable for damages. Just like the person who is publicly accused of shoplifting and the store security was wrong. There is liability for these actions.
I understand that, but isn't that what SafeHarbor is for? Shouldn't they actually do what they tell us they do, and investigate these situations by directly contacting the Copyright Owner? If the owner says the item is illegal, then the liabilty for ending it is transfers to the owner.
Let's face it ... not every Copyright Owner is a member of VeRO, and maybe they might need eBay to advise them that their rights are being violated every now and then.
Are you suggesting that we allow eBay to remove or leave posted any infringing auction purely at their discretion?
No, not at all (although we know they do this all the time). I am suggesting that they investigate! If I send them the name and contact info for a Copyright Owner, how hard can it be for them to contact that person? If you send in a report about a copyright violation, how hard can it be for eBay to contact the seller and ask a direct question like "are you authorized to sell this item?"
And if this system were adopted, should eBay be held harmless for mistakes in removing auctions or mistakes in leaving an infringing auction up?
They are now!
I think the system in place strikes a fair balance between the competing interests. The true adverse parties in these situations are the infringing entity and the copyright owner.
You are forgetting the person who gets really hurt in these situations ... the unsuspecting buyer who sends payment in good faith for what s/he believes is a genuine article only to receive a poorly made copy. There's nothing these people can do except cry the blues. Their money is gone and they only received some junk in return. eBay provides zero protection for buyers who are ripped off for small ticket bootleg videotapes and VCDs. These folks exist all over the eBay Forums and they are begging eBay to help them.
posted on August 1, 2002 02:50:58 PM newYou are forgetting the person who gets really hurt in these situations ... the unsuspecting buyer who sends payment in good faith for what s/he believes is a genuine article only to receive a poorly made copy
All products sold have an implied warranty of being non-infringing. Being ripped off on small ticket items isn't limited to cheap illegal copies. Nearly every situation of someone being ripped off for a small amount is deferred to self help, not just by eBay, but by law enforcement too, and not just transactions on the internet.
I understand that, but isn't that what SafeHarbor is for?
SafeHarbor provides some privacy to "whistleblowers". However, if someone filed suit, the courts can force eBay to divulge your identity.
Shouldn't they actually do what they tell us they do, and investigate these situations by directly contacting the Copyright Owner?
Well... let's think about this. 7,000,000 auctions at any given time, and about 10,000,000 members p*ssed off or with an axe to grind on any given day, generating 200,000 accusations a day to be investigated by eBay - probably going as high as 300,000 once word gets out that eBay will investigate or even read your emails. That would probably drive listing fees up to about $22 each.
If the owner says the item is illegal, then the liabilty for ending it is transfers to the owner
That depends. It seems that under the DMCA, there must be a signed and under threat of perjury notice that must be received by eBay. Otherwise, if a problem arises, the owner can just deny that they contacted eBay or instructed eBay to take any action.
I am suggesting that they investigate! If I send them the name and contact info for a Copyright Owner, how hard can it be for them to contact that person? If you send in a report about a copyright violation, how hard can it be for eBay to contact the seller and ask a direct question like "are you authorized to sell this item?"
How hard is it for you to contact them ? It is not really a question of how "hard" it is, but rather how costly it would be to sort through and investigate 200,000 emails a day. It would probably take around 2000 to 4000 employees.
Let's face it ... not every Copyright Owner is a member of VeRO, and maybe they might need eBay to advise them that their rights are being violated every now and then.
You do not need to be a VERO member to send eBay a take down notice for infringing items. Being a VERO member merely allows you to do it quicker. Copyright and Patent enforcement are plainly self-help situations. Why would any business engage in a practice that they lobbied Congress with the explicit reason of avoiding that practice and its associated costs?
But what do you think the results might be if eBay started "advising" intellectual property owners "every now and then" ? What might result if eBay found the time to notify some owners but not others ? What would result if their advice about the owner's rights were wrong or misunderstood ?
They are now!
ISPs are held harmless now only because of operation of laws like the DMCA. If a book publisher published an author's book that was infringing on someone else's work, the publisher would be vicarously liable for copyright infringment. The ISPs lobbied Congress to specifically isolate them from vicarous liabiltiy and that is what Congress did. If Congress had followed the same line of reasoning applied to publishers, ISPs would have the equivilent of millions of books published dailey, and to avoid liability, they would have to read them all.
posted on August 1, 2002 03:47:01 PM new
This "debate" should be taken to a new thread as although several of us have given Jamie credit for his creativity, bringing this thread to the top continues to bring attention to an obvious spam. I'll volunteer.
posted on August 1, 2002 03:51:10 PM new
Stusi there is no spam and this debate between RB and REAMOND would not be taking place without the thread and topic being up.
Maybe we should just sit back and let them have their debate without interuptions? I know I'd love to jump into it but then it wouldn't be a debate.
That's why we are having structured and clean debates. So that people don't interupt them.
posted on August 1, 2002 04:01:00 PM new
Jaime, isn't your site nothing but a page that says you're beta testing? You're damn lucky TwinSoft won't go there as it may not even be functional enough for a debate.
posted on August 1, 2002 06:44:26 PM new
Just checking in. Interesting reading. I understand RB's reasoning but I think Reamond has explained it pretty well. eBay is not in a position to investigate every claim. Okay, for the sake of the argument, let's say you have some expertise in videos. But what about the thousands of other categories where fraud may occur? Fake autographs, fake antiques, fake designer handbags, fake software, etc.? The cost to employ so many experts and lawyers is simply prohibitive.
There ARE safeguards in place. A copyright holder may contact eBay and instruct eBay to remove an infringing item. eBay WILL remove certain auctions without an investigation, such as "promotional" items (assuming the auction states the item is a promo). In some cases, for example when a seller steals another seller's description or pictures, eBay will end an auction. You don't even need to be a member of VeRO to receive that protection.
eBay HAS taken steps to reduce copyright infringements. For example, a while back eBay banned ALL sales of CR-Rs unless the auction specifically stated that seller was the copyright owner. Naturally that didn't stop the most hard-core violators, but it did stop a great many sellers who were offering "back-up" copies of expensive software programs.
posted on August 1, 2002 07:00:57 PM new
Actually I used to report bootleg videos to Ebay all of the time as it effects legitimate sellers like myself.
I mean, try selling a certain legal title when Ebay is littered with bootlegs of it!
Ebay never, and I mean never once shut one of the auctions down that I complained about.
I stopped complaining. And now I don't sell too many videos on Ebay. I took my sales to a site that's a bit safer.
I don't think you can ever eliminate online fraud but there are things we can do to not make bidders feel a fake sense of security.
There are steps we can do to sellers or bidders that are actually caught in fraudelent acts online.
Like someone else said, we are still in our Wild West days. Eventually the lawmen will quiet things down. In the meanwhile there are too many out there dying with their boots on!
posted on August 1, 2002 07:21:19 PM new
twinsoft ... Interesting reading.
Well, I know I'm learning something here
This is a very complicated issue. On the one hand, my argument is based on what I believe to be right, and on the other hand, REAMOND's argument addresses the legal aspects.
If you ever watch "Law & Order", think how frustrating it must be for the cops when the murder weapon is thrown out as evidence because of a minor tehnicality. The guy is guilty but he gets to walk because someone didn't cross all the t's when writing the warrant.
That's how I feel after reading REAMOND's discussion about how the DMC Act is interpreted.
But what about the thousands of other categories where fraud may occur?
Someone should champion those causes too. As I have been told many times, "just because someone gets away with something doesn't mean you should too".
A copyright holder may contact eBay and instruct eBay to remove an infringing item.
In real life, the Copyright Owner or his agent simply doesn't have the time or impetus to do this. Even the MPAA, who is a VeRO member in good standing will not respond to complaints made by an individual.
eBay WILL remove certain auctions without an investigation, such as "promotional" items (assuming the auction states the item is a promo).
There's one of those technicalities. Even though a stop sign is always red, if it is illegal to sell a "red" stop sign on eBay and the seller leaves out the word "red", all is OK.
In some cases, for example when a seller steals another seller's description or pictures, eBay will end an auction.
I would think that would be harder to prove than a simple copyright violation. With 7 gazillion sellers on eBay, who's to say that two of them can't use the same picture or same phrase to describe an item (the roomful of monkeys on typewriters thing)?
eBay HAS taken steps to reduce copyright infringements.
Yes, of all the auction venues eBay is the most proactive. But they have a long ways to go.
For example, a while back eBay banned ALL sales of CR-Rs unless the auction specifically stated that seller was the copyright owner.
I doubt if this would have had much effect on the small time sellers. What can eBay do once the item has been paid for and it turns out to be a fake, other than tell the buyer "too bad, so sad". They can't get the buyer's money back, and according to their own policy, if they can't see and hold the item, they can't rule in favour of the buyer or seller. Once it's done, it's done. Caveat Emptor.
but it did stop a great many sellers who were offering "back-up" copies of expensive software programs.
Illegal software is much easier to deal with than bootlegged video
posted on August 1, 2002 07:48:45 PM newIf you ever watch "Law & Order", think how frustrating it must be for the cops when the murder weapon is thrown out as evidence because of a minor tehnicality.
I see it more like this: We live in a town where thousands and thousands of people are carrying shotguns, 45s or worse and shooting up the town daily. Then some granny comes to the police station and says, "Some kid shot my kid's eye out with a pea-shooter! I demand you clean up this town of pea-shooters!"
IOW, there is MAJOR fraud occurring on eBay every day. Not just bootleg videos, but serious fraud where buyers have been scammed for thousands of dollars each and more. eBay already has its hands full dealing with the most serious cases.
Again, please remember, there ARE remedies in place, according to the law, to deal with violators. If you don't like the law, why blame eBay?
posted on August 2, 2002 04:25:10 AM new
Fraud on Ebay right now is way over an acceptable amount.
What really bothers me as a user and one of the victims of a very large fraud is the way that Ebay attempts to make people feel that you are protected by fraud, and then two, their complete lack of help and support if you are a victim.
Also, has anyone noticed that Paypal just announced some sort of new fraud protection?
Timely, no?
Also, regarding the comment about Ebay doing more than other sites I don't think that it's correct.
Ebay has over 80% of Online Auction and Fixed price sales.
It has the honus to lead or do more to protect the largest block of bidders and sellers. Are its efforts commiserate in dealing and protecting people from fraud than say SYI?
I don't think so. I think many of the smaller sites spend more time and energy dealing with fraud per capita than ebay does by leaps and miles.
I would share what our own site will be doing but I don't want it to be misinterpreted to be spam.
That's why we have these discussions there so that the Stusi's of the world can't jump in and hop around like a poodle in heat.
There are solutions to fraud. You can never eliminate it entirely but there is a huge difference between elimination of fraud and the status quo in Ebay's current business model.
posted on August 2, 2002 06:12:15 AM new
twinsoft ...
We live in a town where thousands and thousands of people are carrying shotguns, 45s or worse and shooting up the town daily.
Still living in the Wild Wild West eh
Then some granny comes to the police station and says, "Some kid shot my kid's eye out with a pea-shooter! I demand you clean up this town of pea-shooters!"
That does seem silly, but you have to start somewhere. IOW, the way to solve a huge problem that consists of a bunch of smaller problems, is to take it one step at a time. In your town (and please, no NRA types need to join in here!!! ), take away the shotguns this week, the 45's next week, and the pea-shooters the week after.
IOW, there is MAJOR fraud occurring on eBay every day. Not just bootleg videos, but serious fraud where buyers have been scammed for thousands of dollars each and more. eBay already has its hands full dealing with the most serious cases.
You got that right. It just so happens that the piece of this fraud pie that I am interested in deals with the proliferation of bootleg videos and eBay's reluctance to deal with it, and I believe I can help in this area. You should do the same thing using your expertise in software. Between us, we can clean up 2/3000 of the fraud problem on eBay, and if we get another 2998 experts on board, we'll get this town cleaned up in no time.
If you don't like the law, why blame eBay?
I just feel that eBay has a responsibility to their members. REAMOND has given us a good overview of the DMC Act and while that's the law, it doesn't make what these bootleggers are doing morally right. Like I stated in a previous post, there hasn't been a law written yet that a smart bad guy or shyster lawyer can't work to their advantage.
I honestly believe that the eBay lawyers spend more time trying to figure out how to hide behind these laws to protect their Godess, than how to use them to protect their buyers and sellers.
posted on August 2, 2002 08:01:32 AM newI honestly believe that the eBay lawyers spend more time trying to figure out how to hide behind these laws to protect their Godess, than how to use them to protect their buyers and sellers.
I agree with you there to some degree. eBay has an obligation to its shareholders to familiarize itself with the new DCMA law and make sure it abides by the standards of law. But is eBay responsible for those violations that admittedly do occur? According to the law, it is not.
However, it is eBay's own interest to actively combat fraud on the site. And they do this. Every week you hear of another scam artist who got busted. eBay understands that its reputation, and the perception of fraud, is what drives buyers.
There are several mechanism in place to stop bad sellers. If a seller's feedback rating drops to (-4) that seller is automatically suspended. eBay's rules also cover "chronic non-performance" so a seller who doesn't deliver the goods gets booted. eBay already has a fraud protection program for buyers to report problem sellers. There are other, more secure programs that eBay has hinted about, but not released details.
posted on August 2, 2002 10:42:40 AM new
Hi Twinny and RB,
And I want to share it with you as I'm very proud of it.
Check up on us at 8PM EST you know where as this is part of my position regarding the question of the challenge.
As for a point Steve made; he is right about Ebay doing what the law perscribes in a sense.
But if you look at ebay they make it seem as though ebay is very safe and that you are protected from fraud.
It's only when you read the fine print that you realize how little this actual protection is.
That bothers me. It may not be against the law but to me it is deceptful. I guess the communication's department at Ebay wasn't too happy with "Buyer Beware" as a slug line for its campaigns.
There is a difference between what an entity or person is legally needed to do and what it is morally needed to do. Two different positions.
If you are a parent you are legally obliged to maintain your child until the age of consent (except in certain exceptions) however when you birth a child you have moral obligations until death. Many don't observe them but this doesn't condone it or make it better.
If Ebay or any site wants a relationship with its customers surely the safer the venue (is Ebay really a venue any longer?) the better said relationship?
