posted on November 30, 1999 03:24:40 PM new
Good Evening, Neomax.
When you have time, and get around to reading my words, would you kindly find out from the higher eschelons of Auctions.com just what THEIR official view of this whole licensing thingee is?
If possible, please ask WHAT they intend to do, IF anything.
I already know that eBay won't do nothing, cuz they are ONLY A VENUE owned by a buncha Net-Billionaires, who I am sure were aware of what happened in NH, and have simply been waiting, hoping it would be a long time before it became publically known.
Thank you for any assistance you can provide in answering my above questions, and I hereby apologize, cuz I already know that there is NO answer, never is from Cyberbiz.
Well let me correct you. There are some answers and some of them you're just not going to like.
These issues will eventually be decided by a court of law and everything any lawyer or layman says at this point is opinion. That includes me.
First, it is clear that online auctions are considered auctions by a growing number of state regulatory boards.
Second, the states have the right to regulate the actions of their own citizens. It is called federalism.
This includes "auctioneers residing in their states."
The real question in all of this is "who is the auctioneer"
We all know that eBay asserts daily in almost every context that they are a venue. They resist any and all attempts or efforts to put themselves in the role of "auctioneer" except as it relates to businesses such as Butterfields and Butterfields, etc.
the plain and simple truth is that in the eyes of the Auctioneers Board in N. Carolina eBay -- a venue -- cannot be an auctioneer.
If online auctions are auctions at all, and eBay is not the auctioneer, then the "eBay seller" must be the auctioneer.
A key question that is not being asked, though is "Are all online auctions just "venues?:
I think it is clear that just because eBay, or Amazon are just venues, does not mean that all online auctions are JUST VENUES.
The assertion by Mr. Hamilton, as related by Tool Lady on another thread, is a great help in clarifying this.
In in Hamilton said that eBay is a just a venue because it neither controls the merchandise nor does it control payment.
Another aspect bolstering that case is that on eBay, the seller is the auctioneer is based on the "acceptance of bids." On eBay, because the seller has a tool allowing either the acceptance or rejection of a bid, further establishes the seller as the "auctioneer" on that venue.
Who, but the auctioneer, has the right to "cancel" or "reject" bids without interference. On eBay that is the seller.
Bottom line, for any online auction to be considered the "auctioneer" by the various boards, that online "venue" would have to do at least some of the things that an auctioneer does.
Key among those things is to "collect the money" and also have control over which bids are or are not accepted.
Even the time an auction ends has to be within the power, not of the seller, but of the online auction house.
Notably, eBay fails on each of these points.
Just as notably, auctions.com -- particularly with its BidSafe, meets these tests of "control" ususally reserved to the "auctioneer."
Indeed, when BidSafe was introduced, we were told that we had crossed the line from just being a venue, which put us a much greater risk than other competing sites.
For instance, among the services provided BidSafe members is our intervention (not some third party escrow service) to mediate disputes and resolve the troublesome transactions to the satisfaction of all parties.
The point is that the North Carolina (Or New Hampshire or Tennesee) Board of Auctioneers is planning to assert their regulatory control over "auctioneers" and auction firms in their state.
If the online auction were clearly the "auctioneer", then these state boards would probably not have any course of action in regard to those who sold on eBay who also happened to be from North Carolina.
But know this: the presumption now is that online auctions are auctions. So, if eBay is not the auctioneer because they are a "venue" and the buyer definitely is not the auctioneer... the only other possibility -- at least in the case of eBay and Amazon, etc, is that the seller is the "auctioneer."
At auctions.com, because we do collect the money and only provide it to the seller after the buyer's acceptance of the item sold; because we have to remove any bid manually through our service organization (it is not an automated function provided the seller) and because we set the closing time and can extend it and because we do mediate disputes between buyers and sellers; we have moved far beyond the "Just a Venue" position.
Indeed, we do enough of the stuff traditionally reserved for auctioneers (particularly when BidSafe is involved) to justify the North Carolina Auctioneers Board rule that if online auctions are auctions; then we are the "auctioneer" ... not North Carolina residents selling on our site.
posted on November 30, 1999 04:38:09 PM new
well, wait a second... are you saying the AUCTIONS.com is the Auctioneer -- you did say that, right? well, what is the seller on your auction site -- or are you guyes also "only a venue"?
posted on November 30, 1999 05:10:23 PM new
Hello, Pat.
I hope I do not offend you, and I sincerely apologize, but I had to ask for back up help over at the eBay Outlook to see if they could interpret your reply.
(For me of the one functioning neuron).
I note that some people have said sweet teasing remarks in regards to the intellectual nature of some of your posts, and I hope you will not take it wrongly.
regards,
radh
[ edited by radh on Nov 30, 1999 05:22 PM ]
Right now every assertion in this entire issue is nothing but an opinion.
First, my opinion is this is all a big mistake. Online auctions are not auctions at all because there is no auctioneer. There is only one ad and one offer ... not the repeated invitations for offers that characterize a traditional ascending bid auction. (See definition of auction by NC general assembly.)
Furthermore, for an online seller in North Carolina to be considered an auctioneer, and therefore be subject to the rules regarding auctioneers and auction houses in North Carolina, they would have to have responsibility over substantially all the things of a traditional auctioneer.
They have responsibility only over a portion of those activities on eBay and even fewer such responsibilities on auctions.com
And, in the end, you've got to ask, what is the auctioneer in an auction sale but the "intermediary?"
I can't answer for eBay, but I do know that in the case of BidSafe auctions, we act as an intermediary.
----------------
Are you claiming that Auctions.com IS the AUCTIONEER in the case of any North Carolinians selling merchandise on Auctions.com???????
-----------------
I'm not in the position to make that assertion as a point of fact. What I'm saying is that given the facts of the matter, that case could certainly be made. Further that case would be much strong than a similar assertion saying that eBay is the "auctioneer" -- particularly if the seller were using BidSafe as the sole form of payment.
The law is not black and white.
This simply means that just because an auctioneers' board may rule that eBay is nothing but a venue and sellers on that site are by definition "auctioneers" and therefore subject to state regulation does not mean that BidSafe auction sellers on auctions.com would by necessity be subject to the same regulations.
Indeed, I can say with pretty strong conviction, that a seller using the "for sale" format (fixed price sale) on auctions.com (or even Amazon), whether or not they used BidSafe, would be exempt.
Presumably, there is a line to be drawn. The question is where is that line?
The answer is that no one knows other than to suggest there are likely to be as many lines drawn as there are states who regulate auctions.
