posted on September 12, 2000 07:19:54 AM
LOOK AT THIS LINK for the defense against the "it's our copyrighted widget and you can't make pictures of it for your ads" VERO action ...
http://www.loc.gov/copyright/title17/92chap1.html#107
"In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports."
And QUOTE FROM ANOTHER THREAD
"The law contains a long-honored principle called the "First Sale Doctrine". This doctrine, which addresses the exact question that you raise, says that no restrictions whatsoever can be imposed on the right to resell merchandise by the first seller of that merchandise. Thus if a manufacturer sells goods, it cannot absent one of the few vary narrow exceptions there are to the First Sale Doctrine, impose any restriction on the right of the purchaser of those goods to resell them, or on the terms of any such resale."
SUPREME COURT DECISION ON THIS AT:
http://www.bc.edu/bc_org/avp/law/st_org/iptf/headlines/content/1998040801.html
"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 . The Supreme Court first adopted the first sale doctrine in the case of Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908)."
From the summary: "The whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution".
.... and from the text of the decision: "After the first sale of a copyrighted item “lawfully made under this title,” any subsequent purchaser, whether from a domestic or from a foreign reseller, is obviously an “owner” of that item. Read literally, §109(a) unambiguously states that such an owner “is entitled, without the authority of the copyright owner, to sell” that item."
... Tah DAH!
You bought it "in the stream of commerce" (sometimes waaaaaaaay downstream from the place it first hit the water), and if you are not a licensee or agent of theirs, they lost ALL CONTROL after the first sale.
You do NOT have the right to make more of the things, but you do have the right to resell them AND to make a photograph of them for your ads, regardless of the copyright, trademark, etc. status of the item. As long as it's legit, it's salable!
posted on September 12, 2000 08:12:23 AM
Let's assume this is correct in some circumstances of VERO closing of auctions.
(there are so many variables and exceptions in law that it may not apply in every case but for this discussion let's say it applies to at least some cases.)
So the lister is correct and the auction should not have been stopped. Now what? Follow the provided path for requesting clarification and approval from the VERO?
If denied, then apply to the courts for relief?
When you win, what do you get? Who pays the costs?
Is there enough rewards for the effort?
Maybe a solid test case would change eBays attitude towards closing auctions. An injunction is possible but we're talking time, money and legal talent here.
If an organization like ACLU exists that deals with these issues or a law class would take this as a cause, there might be a route open to contest the present policy.
Who will put the time and money on the line?
Until then, they are wrong but they're strong.
Unorganized small business does not have much clout.
Maybe the FCC will take a look at the question but we will be in retirement homes before a ruling is issued. SBA and Justice Dept. are also possibilities.
Is there a national level elected official who speaks for small business and might be willing to challenge Internet companies and major corporations?
We're right, they're wrong, so what?
Now if there are monetary penalities beyond the damages of the lost auction, maybe this gets interesting.
posted on September 12, 2000 08:13:56 AM
thanks....now the big question is, has anyone used this defense with either Ebay or Waverly or some other big gun, to defend selling product on Ebay. BTW, I requested a copy of the advertising and marketing guidelines from the Waverly/Schumacher website...I was directed to that website by Waverly but the info they directed me to is not on there. They say that info spells it out fully....I am collecting all emails and posts on this subject and will then form a comprehensive reply to both Ebay and Waverly. I also have requested a form from Ebay to protest the action, not received it yet....doing all I can!
posted on September 12, 2000 08:16:30 AM
Great research, abacaxi - and well articulated so that even I can understand it.
Unfortunately I think bldrms is right, in that ebay sets the "rules" as to what might be posted on its site. (Kinda like a certain poster recently complaining that his "right to free speech" had been abridged by AW when he was threatened with suspension - hey, when you join the club, you agree to follow the "rules" ).
However, that's not to say that the matter couldn't be raised in litigation, which is where I suspect it'd have to go. At present at least, Ebay has less to lose with VeRo overkill than it does by underenforcement; it's more likely that e.g. Waverly would litigate against Ebay for permitting possible VeRo-violating auctions from continuing than it is that pinsnneedles or susiegirl or any individual seller would file suit, and without litigation, Ebay's response to any argument for reinstating the cancelled auctions can be merely "Too bad." In this instance at least, argument without litigation has as much weight as the e-paper it's printed on.
Yes, yes, there's a (pretty obvious) middle ground - but do we actually believe ebay capable of acting rationally and finding it?
[ edited by HartCottageQuilts on Sep 12, 2000 08:18 AM ]
posted on September 12, 2000 08:25:04 AM
I have not been veroed yet. If I ever am I will assure you that my action will be to sue the wholesaler I got the item from for selling me pirated goods. Even if I am sure that is not the case it will be based on the
claim by the manufacturer it is so. We will see how long a manufacturer chooses to vero people when it puts a thumb in the eye of their distributors.
posted on September 12, 2000 08:41:05 AM
In the end it may well be a useful tool against VERO's and their abuses.
However, in regards to Ebay - The problems arise from the Digital Mel Copyright Act. The VERO's can still nuke your auctions at will. The law is VERY specific - VERO complains - Ebay HAS to shut it down - No questions can be asked about it by Ebay. The law says they have to act on a complaint regardless of proof or intent. (Remember the Jeff Buckley war?)
Now you can likely use this in dealing with a VERO - and a pattern of abuse by a VERO might lead to a class action. But - most folks won't bother - We know that, because it takes buckets of money to buy yourself a tiny bit of potential justice - and the cards are stacked against you - against a Versace legal team prepared to bankrupt you, at all costs, before trial could even begin.
I'm very sad and cynical about our experiment in Democracy based on the highest fundraiser and a legal system where the highest numbers of lawyers on one side or the other prevails.
posted on September 12, 2000 09:22:46 AM
>If denied, then apply to the courts for relief?
No need to do so! The law the VERO people are using contains its own set of rules on how to proceed. If you challenge a complaint, with a proper counterclaim, that the item is legally offered for sale, the company has to put up or shut up ... either bring a legal suit for violating copyright/trademark or allow the ISP to put the stuff back. And the ISP MUST comply with the law and replace the material.
********
"The OSP must comply with "notice and takedown" procedures, i.e., upon "proper notification," expeditiously remove or disable access to the offending material, and "counter notice and put back" procedures, i.e., upon "proper counter notice," promptly notify copyright owner of dispute and replace material within two weeks, unless the matter is referred to court."
>Is there enough rewards for the effort?
"Any misrepresentation of material facts will subject the offending party to claims for damages and attorneys fees."
Many of the VERO complaints are citing copyright law as an excuse for ending auctions where the law CLEARLY exempts creation of images of copyrighted works for use in advertising ... if their legal pitbulls are citing copyright law to intimidate small sellers, while overlooking the portions of the law that specifically allow what the small seller is doing, it could be a slam-dunk case for nasty media publicity and some monetary damges.
*******
If a subscriber files a proper "counter notice," attesting to its lawful use of the material, then the OSP must "promptly" notify the copyright owner and within 14 business days restore the material, unless the matter has been referred to a court.
The counter notice must contain these elements:
The subscriber's name, address, phone number and physical or electronic signature.
*Identification of the material and its location before removal. (URL or item number)
*A statement under penalty of perjury that the material was removed by mistake or misidentification. (Here's where you cite the law to eBay about "Doctrine of First Sale" and the applicable part of the US copyright law about making photos for resale OK" and tell them they have FOURTEEN BUSINESS DAYS to restart the auction or be in violation of the law themselves. It's up to the VERO complainant to file suit within the 14 business days and tell eBay that they have done so. Nothing else can keep the information from going back on line.)
*Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body.
(I believe that's MY local federal court, not theirs, but would have to check.)
This could make it hard for the VERO people because they either have to FILE SUIT promptly or let the replacement of the material go unchallenged (if they tried to challenge material they had already let slip once, they would lose on style points). If large numbers of people were to start challenging the VERO actions, the only thing the VERO people can do is bring hundreds of lawsuits against hundreds of small-time sellers, one-by-one, all over the country.
Drive up the cost of VERO enough and they'll back off, but if everybody caves in at the first email, it's cheap protection.
nutspec
"VERO complains - Ebay HAS to shut it down - No questions can be asked about it by Ebay. The law says they have to act on a complaint regardless of proof or intent."
LIkewise, eBay has no choice in this: if the seller challenges the removal with the appropriately worded reply, and the copyright owner does not file suit in FEDERAL court, eBay has to replace the material (i.e., restart the auction) within 14 business days from the original removal of the information. PERIOD.
I sell things that are unlikely to be VEROed, but if I ever get hit, eBay will get the properly formatted FAX within seconds, and be told that I expect the auction to be re-instated within 14 business days of my notice unless the VERO owner files a proper lawsuit in the local federal court.
And the VERO owner can't just keep reporting the same material over and over ... it's a "sue or shut up" clause.
[ edited by abacaxi on Sep 12, 2000 09:32 AM ]
posted on September 12, 2000 09:55:06 AM
HCQ -
.... they are only a venue and the law is VERY specific ...
"`(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and
`(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider's system or network.
That is HAS FILED ... not is planning to file, threatening to file, or merely thinking abuot filing, but HAS FILED!
posted on September 12, 2000 10:06:06 AM
ABACAXI - OK, what is a pratical approach to provide relief for this problem?
Seems like some of the elements would include:
1) A site off eBay where sellers rights are outlined.
2) A tutorial of how to respond and follow thru until resolution.
3) Some identity to provide information and support to sellers during the process.
4) A data base of pending cases, updated to reflect responses and outcomes.
Is there any penalty for filing complaints that are not followed up? Seems eBay must stop the listing, seller must file "counter notice" and at that point VERO can either stay quiet or sue.
If they stay quiet they have disrupted the selling process without any consquences for an invalid or "not proceeded with" complaint.
If they sue what are the potential upfront costs to the seller. Even if the seller is right they have to prove their case.
Seems like an attorney standing by who would be willing to take these cases on contingency would be a good idea. Enough money from judgements to justify his time? Licience problems as these cases could be all over the country?
So eBay is caught in the middle. In time they start telling VERO's "You better be careful. People are fighting back" Vero says "So what, if we stop the auction and walk away we still win and at no cost or risk to us".
Seems like we not only have to facilitate the filing of "counter notices" but some how make the original complaint "costly" if it is witout merit.
Edited to remove a few of the typos.
[ edited by reston_ray on Sep 12, 2000 10:13 AM ]
posted on September 12, 2000 10:40:12 AM
Thanks for the discussion abacaxi -
But, the counter notice is all well and good assuming that the VERO backs off.
Ok - but what happens to Bill and Nancy Smallseller when Versace DOES FILE in Federal Court on you in a complaint. Bogus or not - you will spend the next 3 to 5 years in Court. So what if they don't win in the end - they will have distroyed you. They don't HAVE to win - as long as you are distroyed by the process.
The only way to fight is to have a group effort and a friendly Federal investigator who is willing to bite the hand that feeds his Boss - and His Bosses Big Boss. - Yeah - - Ri.g.h.t.
Do you have enough money to fight them? - I don't. Yes, it stinks and yes it is intimidation. And that is the way we have allowed our system to become.
Been there in court (Not a copyright case though)as the small guy, with all the evidence and all the witnesses. The other side had theories that sounded like Elvis and aliens pulled off the change - in public.
Guess what - I was the little guy - they were big and well connected politically. The End.
Bitter about VERO's - You bet.
Bitter about the whole corrupt system - you bet.
Going to take a walk and pet the cat for a while to calm down now - you bet
posted on September 12, 2000 10:47:41 AM
reston_ray -
Exactly ... a tutorial with the steps for a VERO'd seller, showing examples of the eBay notice and a sample of what the challenge to the removal has to look like (the format is VERY specific), with links to the applicable law, with case law and court decisions.
"Is there any penalty for filing complaints that are not followed up? Seems eBay must stop the listing, seller must file "counter notice" and at that point VERO can either stay quiet or sue. If they stay quiet they have disrupted the selling process without any consquences for an invalid or "not proceeded with" complaint. "
Yeah, but if they don't follow through, they can't file a complaint on the same supposedly infringing item again ... it's a "sue or shut up about it" clause.
If they file again on the same auction, eBay needs to be reminded that UNDER THE LAW, the VERO complainant had a limited time to block the reinstatement of the material by filing a proper court case, and failed to do so. Repeat complaints for the same material are not allowed ... they have to sue or allow "put-back" and leave it alone.
Push for REINSTATEMENT of the auction under its original number so it can't be challenged again. Or put the original number in the relist with a statement to the VERO person at eBay: "Reinstated after XXXX failed to file an injunction as specified by the DMCIA. This auction can not be removed again, because their only legal remedy to my challenge to their complaint about this item is filing in federal court within the stipulated time."
Repeated complaints from a VERO that were never followed through ... I'd file a formal complaint with their state Bar Association about "frivolous and harrassing complaints under the DMCA" and point out that of X complaints they made, none were followed up by a court filing ... they are merely abusing the law to harass and intimidate legitimate sellers because the seller's use of the copyrighted matterial is within the law (and then lay out some of the legal jargon and a couple of Supreme court decisions).
"If they sue what are the potential upfront costs to the seller. Even if the seller is right they have to prove their case."
Very little ... you can write a reply (or just show up in court) and make a motion to dismiss the case as "frivolous and without merit", state your case citing the Supreme Court decisions involving the First Sale doctrine and the copyright law exemption for making pictures of copyrighted things for advertising. Show your item, show the eBay listing and all the emails and stuff.
They have to PROVE you infringed according to the laws, and unless you have pirated items the law is quite clear that resale is OK (unless there is a contract between you and the MFR) and pictures for ads are OK as long as you took them yourself.
If you want to scare them, and have a few bucks to burn for the filing fee, countersue for unspecified legal costs, damages to business income and to business reputation to be determined, and mention the word "disclosure" in a registered leter to them. Under disclosure you can ask them for details of every VERO complaint they ever filed, and its resolution. You can tie their entire office up in knots getting the stuff you ask for.
They have some ill-paid legal clerk running searches and firing off form letters any time there is a hit on the word they ar esearching for ... if a substantial number of VEROed sellers start firing back their own form letters and taking up real lawyer time they might become a little more selective.
Collectively, the sellers could make their lives living hell just by forcing them to follow the law.
posted on September 12, 2000 11:03:22 AM
The thing that I find most difficult to understand in all of this is why eBay is not responding to any of these issues, either publicly in this forum, or privately in response to the questions we are asking them.
How much longer do you think they will be able to dodge the bullet (i.e. tell their users that could care less about them)?
One of these days, some hot-shot, young lawyer is going to take this issue, and a few other illegal activites that eBay has been told about yet continue to allow, and run with it. Financially, eBay can probably handle the fines etc. (I'm sure the owners have hidden their dough somewhere), but I wonder if they will be able to handle the number of people who leave because they do not want to deal with a company that knowingly allows some of their members to use their venue for illegal activities.
It is truly pathetic that so many people cling to eBay simply because they think it's the only game in town ...
posted on September 12, 2000 11:03:42 AM
NUstspec -
"what happens to Bill and Nancy Smallseller when Versace DOES FILE in Federal Court on you in a complaint. Bogus or not - you will spend the next 3 to 5 years in Court."
What happens when Versace has to file SEVERAL HUNDRED cases in MULTIPLE courts all over the country, for cases where they know they don't have a prayer of winning ... where they know it is a person reselling a legitimate Versace items bought through legitimate aftermarket channels (or even gray market ... Supreme Court case on that said the sale is OK, as long as it was imported properly).
And if Versace knows that there will be a LOT of media attention, web-based progress reports, tactic sharing, and that "Bill and Nancy Smallseller" is really "amorphous cooperative mob of small sellers determined to retain the right to resell"?
A coordinated effort to challenge EVERY POSSIBLE VERO could tie these companies up in knots and make them pick their batles more carefully.
posted on September 12, 2000 11:17:37 AM
CS - Very simple, but as the majority of eBay sellers do not venture into these grey areas, they are totally apathetic to our problems and will continue on their merry little way. It would take a large number of people like 'us' to rebel against the eBay Gods to make anyone listen.
OTOH, 'we' have to keep trying. In my battle with eBay, the story is going to hit the news very soon ...
posted on September 12, 2000 11:24:46 AM
While "making their life hell" is inviting in certain circumstances this does not seem to offer a pratical solution for most sellers.
To file a "counter notice" and risk being sued is not pratical for most small businesses. Better to sell it in another venue and move on.
If VERO'd items where collected and relisted by one or more individuals, after consulting with an attorney, who were willing to follow procedures and go to court then some end to the problem might be seen.
Now if we can just find some crotchety disabled old man with nothing to lose, too much time and a thick head maybe we can push back.
Seems like some amendment to the law might be in order. If the party filing the complaint had to post a $500. bond, which would be forfieted if a "counter notice" was filed and they did not sue, or if they sued and lost, then maybe firms would think twice before filing complaints.
Don't want to prevent the law from being used where it is justified but using it for unfair harassment of eBay sellers should be stopped.
posted on September 12, 2000 11:47:46 AM
"To file a "counter notice" and risk being sued is not pratical for most small businesses. Better to sell it in another venue and move on. "
And that is EXACTLY what the businesses are counting on ... everybody thinks it's too much trouble and too risky to not move to the back of the bus when told to. So they meekly keep shufling to the rear, no mater how specious the claim of infringement and how it afects their business,
posted on September 12, 2000 11:49:28 AM
Abacaxi -
That's all well and good - But in your scenario, Bill and Nancy are still in court - They have to spend for representation (Sorry, but only a fool would go in Federal Court and make their own motion to dismiss agains a TEAM of laywers with a bucket filled with their own motions) such as "Cease and desist" - Filing for a seizure or freezing of all assets and accounts until the case is settled as to "recover" potential illegal profits -
As well as the associated questions that might come up regarding your bookeeping for State Sales taxes paid - and the Federal Income Taxes on your selling income. (You have paid them all - right? And they will withstand the efforts of a team of Versace auditors and accountants - when you and Ebay are FORCED to turn them over during "discovery" - right?)
God, I wish it WAS as simple as flodding them with counter notices. But unless you are willing to pay a terrible potential price - Even if you are in the right - it is not that cut and dried.
Remember that Bill and Nancy can be totally in the right and STILL lose to these weasels.
Sorry, but I just don't believe that the system works for ordinary people anymore. I know that several folks at AW are assocated with Law Enforcement and I do tip my cap to those that do such a hard job - but, my personal experiences have totally distroyed any illusions that I ever had. I have no faith that the system works for us anymore.
Sorry to be a downer - But I have earned my jaded and bitter outlook.
posted on September 12, 2000 11:50:30 AM
Now if we can just find some crotchety disabled old man with nothing to lose, too much time and a thick head maybe we can push back.
posted on September 12, 2000 11:58:36 AM
Here's the letter that users get when ther've been Vero'd, and they complain that it was not justified.
************
Dear eBay Seller,
eBay recognizes that sometimes an auction may be mistakenly identified by a Verified
Intellectual Property Owner, its agent, or law enforcement, as including an infringing or otherwise unauthorized or illegal item. In the event that such a mistake occurs, you should contact the complaining party directly. eBay will gladly allow you to re-list the item upon receipt of acknowledgement of the mistake from the complaining party.
Alternately, if the complaining party does not agree that the allegation was in error, you may also provide eBay the attached Counter-Notice Regarding Ended Auction. The Counter Notice form requests a sworn statement under the penalty of perjury and other information which substantially complies with the requirements of the Digital Millennium Copyright Act, 17 U.S.C. section 512, which states:
To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following:
(A) A physical or electronic signature of the subscriber.
(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
(D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent from such person.
Please fill out the Counter-Notice form for each occurrence of an alleged act of mistakenly reported or misidentified infringement and return it to the address provided below. We require that you physically sign the form. Notification from a seller that fails to comply with the provisions above shall not be considered as providing actual knowledge or an awareness of facts or circumstances sufficient to require eBay to allow re-listing of the removed items. Upon receiving the original of your fully completed Counter-Notice, eBay will notify the reporting entity of the Counter Notice and inform that entity that eBay will allow the re-listing of the removed items within 10-14 days, unless, following receipt of the Counter Notice, eBay receives notice from the reporting entity that it has filed an action seeking a court order to prohibit you from re-listing such infringing items. If the reporting entity disagrees with your Counter-Notice, they may file a legal action against you to prevent the re-listing of the ended auction item(s). Alternatively, if they notify us in writing or by e-mail that they no longer object to the auction item or material, we will allow it to be re-listed.
Very truly yours,
eBay Inc.
COUNTER-NOTICE REGARDING
ENDED AUCTION*
I. Penalty of Perjury Statement. I CERTIFY UNDER SWORN PENALTY OF
PERJURY that I am sending this notification on the basis of my good faith belief that the
auctions referred to below do not involve infringing materials or uses and have been
identified by a Verified Intellectual Property Owner, its agent, or law enforcement as
infringing by mistake or due to misidentification: (List Auction Items Below)
_____________________________________________________________________
_____________________________________________________________________
II. Consent to Federal Jurisdiction. I consent to the jurisdiction of the Federal District
Court for the address provided below, or if such address is outside the United States, I consent to jurisdiction of the Federal District Court, County of Santa Clara, California.
III. Consent for Service of Process. I agree to accept service of process from the Verified Intellectual Property Owner, its agent, or law enforcement.
IV. Contact Information. I certify that the following contact information is accurate and valid. I acknowledge that eBay will compare the contact information provided herein with my eBay contact information, and false or fraudulent information may result in suspension of my eBay account.
V. I understand that my knowing misrepresentation herein that material was removed by mistake or misidentification may make me liable under federal law for damages, including costs and attorneys’ fees. See 17 U.S.C. section 512.
VI. I understand that if the reporting party disagrees with the Counter-Notice it may file a legal action against me to prevent the re-listing of the ended auctions.
VII. Acknowledgement. I acknowledge that this notice is filed under penalty of perjury.
I may be contacted at:
Name____________________________________
Street Address____________________________________
___________________________________________
City and State____________________________________
Zip____________________________________
E-mail____________________________________
Telephone____________________________________
Fax____________________________________
Date____________________________________
Signature____________________________________
UNDER SWORN PENALTY OF PERJURY
Send to: eBay Inc., Attn: Legal Counter-Notice, 2145 Hamilton Ave., San Jose, CA 95125.
Attach to this notice any relevant correspondence, including emails, with eBay or the intellectual property owner.
* This Counter-Notice complies substantially with the requirements of the Digital Millennium Copyright Act, 17 U.S.C. section 512.
posted on September 12, 2000 12:07:31 PM
I'm one too, in case you hadn't guessed.
I would be interested in what might be asked and granted by the court in the way of discovery. All the TV shows I watch seem to give the Judge some leeway regarding motions. They might ask but I don't think it is automatic that they can examine your entire live.
I have nothing to hide. Well, I at least think that the statue of limitations has expired on most of the stuff.
posted on September 12, 2000 12:16:19 PM
nutspec -
(Sorry, but only a fool would go in Federal Court and make their own motion to dismiss agains a TEAM of laywers with a bucket filled with their own motions) ... well, it's been done and successfully. You just have to make sure you stick to arguing the REAL point of the law, which in this case is the right to resell legally obtained merchandise, and keep on track.
"Filing for a seizure or freezing of all assets and accounts until the case is settled as to "recover" potential illegal profits " ... easily countered.
FIRST they have to convince the judge it's illegal to resell the item, and the Supreme Court decisions are all on the side of the legitimate reseller. That's why going for the dismissal works, because you walk in ready to ask for a dismissal, and once it's dismissed they can't file anything
If the complaint is over a single USED Versace skirt, what could the potential damages be to Versace? Posting a bond with the court for the $49.85 the item might have brought at auction? Give the court the skirt? (let them hold your MWT Peace Bear?)
"As well as the associated questions that might come up regarding your bookeeping for State Sales taxes paid - and the Federal Income Taxes on your selling income. (You have paid them all - right? And they will withstand the efforts of a team of Versace auditors and accountants - when you and Ebay are FORCED to turn them over during "discovery" - right?)"
They can only request the records for Versace related transactions, not any tax records - all else is a "fishing expedition" and easily avoided ... and if they filed to prevent it taking place, there are no records for them to get about it.
However, you have to make sure your tax status is current, your bookkeeping practices are reasonably competent, and you are 10% squeeky clean. This would not be a tactic to try if you've been selling a lot of Versace stuff under the table for cash.
But can/would Versace do this to a herd of small sellers? Sure, they could squelch one or two or drag them out, and take a few dismissals with no problems, but if they had to simultaneously take on three or four in every state in the union ... they would realize they can't just file VERO suits mindlessly.
posted on September 12, 2000 12:34:08 PM
Steve -
You have my consent to reuse any or all of the posts.
So eBay wants you to waste time and effort contacting the VERO rep ... it would be far more effective to merely fire back the form for anything you are confident about and tell eBay that you will relist in 14 days unless you get served papers from the VERO's process server for an appearance in _____ federal court ... and advise them that the VERO rep is only allowed ONE crack at the item before filing a legal action. If they try to shut down the relist, they have no legal standing.
Whether or not the VERO informs eBay that they do not mind has nothing to do with the LAW. The LAW says that if they do not file within 14 days, the ISP MUST put back the information. NOt "may" ... MUST.
The form mentions PERJURY a lot ... well so does the form the VERO owner has to file.
It could get very awkward for the VERO lawyer to claim that they did not know about the "Doctrine of First Sale" (1909 Supreme Court Decision) and that although they are citing copyright law to get an item VEROed, they managed to miss the section in the copyright act that allows advertising with images of a copyrighted item.
posted on September 12, 2000 01:47:59 PM
I guess that I'll continue to be a devils advocate here - not because I love VERO's (In fact those who know me - remember that I have an utter distain for them.) They are a big company stomping on little people - because they know they can.
(also, I use Versace only as an example - not because of anything they have done to me)
"it's been done and successfully"
Bully for them - I cheer them - My joy is unbounded.
Has it been done - and NOT been sucessful? - We all know the likely answer to that.
What then? - You have no legal representation and will then proceed to the motions of Versace's team as soon as your motion to dismiss is denied.
"Discovery" is just that - and if they make the case that ANY of your sales MIGHT involve Versace - without using the name - then ALL records of all ebay sales would be forced to be turned over. (Is discovery abused? - You betcha)
What I'm cautioning is that if it was easy - Those of us who have been around since the "Legal Bully's" program arrived - would have done it already. Don't ever think that you can just waltz into federal court make a motion (Case law notwithstanding)- And be out for lunch - every time.
I'm simply saying that making a "counter-notice" challenge to a huge company - where their only option is to give up, or make an example out of you - is fraught with dangers. Don't jump in until you know EXACTLY how deep the water can get.
And you can still be totally in the right and lose.
posted on September 12, 2000 02:17:09 PM
Also - there is one comment about relisting a item based on a counter notification - You can't. Ebay has to do it as the OSP. You relist an item - it can be renuked because it "might" be a different one than before.
Title II of the DMCA about "notice and putback"
The OSP (Ebay) must take reasonable steps to promptly notify the user that the OSP has removed or blocked the material.
Next step - counter notice
Unless the copyright owner then notifies the OSP that the owner has filed a court action seeking to restrain the alleged infringement in Federal Court, the OSP must replace or unblock the material within 10 to 14 business days of receiving the counter notification.
You should not have to relist after a sucessful counter notice.
P.S. The DMCA provides for liability against users in any knowing material misrepresentation in the counter notification that a seller would send in (beyond perjury) to both the OSP and to the VERO. You make a knowing mistake in the Counter Notification and the VERO can go after you on those grounds alone. (I find no reciprocal liability for the Vero's for misreprensentation within the text of the DMCA - but I may have missed it.)
Nutspec - Who is not a lawyer - but who has had a printed copy of the DMCA in his desk, and has been fighting it, since the "Legal Bullies" days.
and the law is VERY specific ...