posted on September 22, 2000 07:27:13 AM
[sorry for length!]
As some of you folks know, I was NARU'd by eBay for listing some video tapes. This came as a result of another member interfering with my auctions (not just the stuff I was selling, but the stuff I was trying to buy too). EBay won't tell me who that is, not will they take any action against that member. I suspect I know who this member is.
In 'retaliation', I have been trying for almost a month to convince eBay that they are breaking the law by allowing this member to continue listing illegal items. EBay, of course, has refused to take any action as they will lose too much revenue if they abide by the law.
Here's a cut from one of the latest 'phoney' listings in this category (subsequently pulled by eBay because it wasn't offering anything for sale, but, the seller is still very active!).
[here's his 'justification' for selling these items]
Why are the Emmy Videos on eBay disappearing?
You may have recently bid on an "Emmy Consideration Video" for your favorite television show on eBay.com. But recently many of the videos are just disappearing before the auction ends. Why?
The reason Emmy Consideration videos disappear is because lawyers for the major television studios are having them removed. They say it infringes on the copyright of the show involved. Now the lawyers are taking it one step further and threatening lawsuits against anyone offering these videos to fans. Please read the letter that I received in my e-mail from Keats, McFarland and Wilson (posted below) demanding that I "name all parties involved" and "immediately provide them with all copies of the tapes." They even want the names, addresses and phone numbers of anyone who has purchased a video in the past.
Let me make it clear that every video I ever offered on eBay.com was purchased from a charity run by the nicest ladies in the world whom I would never "name" to any lawyers who would try to intimidate them. I have never offered videos on eBay that were illegal copies or "dupes," only videos that were distributed by the Studios themselves.
The Landfill is the only legal place for Emmy videos You do the math. Every television show producing thousands of videos every year for each show, and distributing these to members who are eligible to vote for Emmy awards. The recipients can't possibly keep them all. The Academy members have no choice, they receive these videos as gifts! If these Studio lawyers have their way, the landfill will be the only place for the unwanted videos.
The reason so many of these videos are sealed is because the Academy members do not want them and do not watch them. God forbid they would wind up in the hands of a fan who just wants something from their favorite show that's a little bit special. The appeal of these videos is usually more about the box than the program; anyone can tape a TV show. We're talking about memorabilia here, not copyright law! We just want something that can't be bought at Wal Mart.
Please write to the studios and let them know how you feel. If they are going to put something out as cool as these videos people are going to want to collect them. Maybe they should put their Emmy content on the internet with special passwords to view it (no litter, no waste, a lot cheaper). But until that time can you please leave us collectors alone?
[here's the letter he received from the lawyers]
Dennis L. Wilson
Keats McFarland & Wilson LLP
9720 Wilshire Boulevard, Penthouse Suite
Beverly Hills, CA 90212
Tel: (310) 248-3830
Fax: (310) 860-0363
September 15, 2000
VIA ELECTRONIC MAIL
Attention: XXXXX
Seller ID: XXXXX
E-mail: XXXXX
RE: UNAUTHORIZED SALE OF XXXXX EMMY VIDEOS
Dear XXXXX:
This letter is being written to you on behalf of Warner Bros., a division of
Time Warner Entertainment Company, L.P. (hereinafter "Warner Bros.". Warner Bros. is the exclusive owner of all rights in the XXXXX television series, including without limitation, all trademark rights and copyrights (hereinafter referred to as the "XXXXX Copyrights and Trademarks". No one is authorized to reproduce, transmit, copy, or otherwise utilize the XXXXX Copyrights and Trademarks without the express written permission of Warner Bros.
Notwithstanding this, Warner Bros. has recently learned that you have offered for sale unauthorized Emmy videotapes containing XXXXX episodes on eBay's web site located at "http://www.ebay.com," auction items XXXXX, XXXXX, XXXXX. We have requested that eBay suspend your auction for these unauthorized videotapes.
You are hereby put on notice that the reproduction, transmission and/or
distribution by you of such unauthorized and/or derivative copies of the XXXXX
Copyrights and Trademarks constitutes copyright infringement. Warner Bros. hereby demands that you and all those who have acted in concert with you immediately cease any copying, transmission, distribution and/or other utilization of any of its protected intellectual property, including any use of the XXXXX Copyrights and Trademarks.
In addition to the foregoing, we request that you immediately provide us with:
(1) Any unauthorized copies of the XXXXX videotapes to the undersigned at the
address listed at the top of this letter. Should you not immediately do so, Warner Bros. expressly reserves all of its rights to file a lawsuit against you to obtain damages for all past acts of infringement and an injunction to prevent any future infringement.
(2) All information pertaining to the source from which you obtained the unauthorized XXXXX Emmy videotapes, including each source's name, address, phone number and e-mail address; and
(3) All information pertaining to any purchasers of the XXXXX Emmy videotapes, including these purchasers' names, addresses, phone numbers and e-mail addresses.
Please confirm that you have ceased distributing all protected intellectual
properties of Warner Bros., including the XXXXX Copyrights and Trademarks, and
that you have provided us with the information requested above by signing
this letter in the space provided below and returning it to the undersigned before the close of business on September 29, 2000. If you do not do so, we will be forced to recommend that Warner Bros. immediately take further legal action.
This letter is not a complete statement of Warner Bros.' rights in connection with this matter, and nothing contained herein constitutes an express or implied waiver of any rights, remedies, or defenses of Warner
Bros. in connection with this matter, all of which are expressly reserved.
Very truly yours,
Dennis L. Wilson
Keats McFarland & Wilson LLP
DLW:rls
cc: Warner Bros.
I, XXXXX, hereby acknowledge that I have (1) ceased distributing unauthorized copies of the XXXXX Emmy videotape, (2) provided Keats McFarland & Wilson LLP with the information requested above, and (3) returned any
unauthorized XXXXX Emmy videotapes to Keats McFarland & Wilson LLP.
Now, don't you think that eBay should get the same letter for KNOWINGLY allowing this to continue???
posted on September 22, 2000 08:18:20 AM
If you legally purchased a tape that was not "stolen" merchandise or made in violation of copyright law (they made it), it is your personal property. For a law firm to demand you to turn over your personal property without payment is a violation of your rights. It's called stealing--which is the same thing they are accusing you of doing without due process
They can't demand any such thing without a court order, which they probably won't do, knowing that it is a violation and rather expensive to prosecute.
The audacity of companies who make and distribute products that they then somehow deem illegal because they are not profiting from them is quite disturbing.
posted on September 22, 2000 08:30:06 AM
The thing is, you cannot legally purchase one of these tapes! They are made exclusively for the use of the Academy voters. Not even they are allowed to offer them for sale or rental. The only people that should have these tapes are the producers and the voters. Most of them even state "NOT FOR RENTAL OR RESALE" right on the tape.
And, I wouldn't place any bets on your assumption that the lawyers won't prosecute. They have in the past and they will again. Trust me, I have seen the results of one of these legal battles and the person distributing the tapes NEVER wins! Let's face it, Warner Brothers has got lots of dough and they have to pay their lawyers whether they are in court or not.
And further, eBay, acting as the 'middle man' in this illegal activity is just as guilty as the sellers. They cannot fall back on their excuse that they do not or can not police their auctions, or that they didn't know illegal items were being sold on their site.
posted on September 22, 2000 12:09:17 PM
I don't know what legal weight the "NOT FOR RENTAL OR RESALE" label has but it certainly doesn't sound like any unauthorized copying was involved. Would be interesting in learning the answers.
posted on September 22, 2000 12:54:51 PM
It has exactly the same legal weight as a stop sign or a "No Trespassing" sign. It is provided as a warning. In fact, it is really no different that the copyright symbol you see on a lot of products, including the dreaded Waverly fabrics.
Unauthorized copying has nothing to do with this issue. These people are selling tapes that have been produced by the studios for the sole use of the Academy members. If someone was to sell a COPY of one of these tapes, another law kicks in.
The thing that really makes me wonder is why eBay continues to ignore these auctions and the law.
This is what it states on the eBay site under prohibited items: "Sale or distribution of "awards" videos, such as Academy Awards or Emmy Awards promotional "screeners," is considered by movie and television studios to be a copyright infringement."
According to "Jason" (eBay), this statement was prepared by the eBay lawyers. To me, it's cut and dry - no room is/should be allowed for eBay's 'opinion' as to whether these should be allowed or not.
I am a tv fan and I would love to get this law changed. I have been bantering this issue back and forth with the MPAA and their legal department for the past 10 years, and they have absolutely no desire to change it. Whether or not they are losing revenue via these illegal sales is irrelevant. The law is the law. Sellers are violating it and eBay is allowing them to violate it.
posted on September 22, 2000 01:15:00 PM
Here's the full text from eBay's site:
Why can't I sell most promotional items? Each promotional item is a copyrighted work. When they initially are distributed they are not sold. They technically remain the property of the record company or the studio that distributed them. The radio stations, movie theatres, etc. that receive them are only licensed to use the promo materials for limited promotional purposes. They are prohibited from selling them or giving them away; the materials themselves often state right on them "Not For Sale." Demo videos are given to video stores so they can decide how many copies of a particular video title they want to buy. Such demo or "screener" videos often say on the package and on screen "Not for Sale or Rental." Movie studios virtually never permit the sale of movie trailers. If your item has such warning language it is probably an infringement to list it on eBay. Sale or distribution of "awards" videos, such as Academy Awards or Emmy Awards promotional "screeners," is considered by movie and television studios to be a copyright infringement.
posted on September 22, 2000 01:31:46 PM
Clear as mud. Studios opinion is that it is infringement, ebay defers to that opionion, neither cites law nor precedents. Sounds likely to be legally undecided.
posted on September 22, 2000 01:45:57 PM
If your beef is with Warner Brothers, then haven't you noticed that eBay has run auctions of Props from WB?
Or possably, the guy who is "blantantly violating" the rules could be a part of the movie studios?
It's possable that eBay has done some "underthetable" dealings.
There is currently one debate about 2 auctions a while back. It was for 2 sheets of Magic the Gathering from it's upcoming set, Invasion.
Some claim it was a publicity stunt, that eBay got money from Hasbro (WOTC parent company) due to the fact the first auction took 5 days to get pulled, while the second one took about 23 hours to pull. Also, the first one had crisp, clear pictures of the items, while the second one had horrable pictures.
Of course, the second auction resulted in criminal prosecution (which I informed AuctionWatch about, and they ran a small story on it, sans some details that should've been included) because Wizards claimed it was stolen, but the first one never got any flack.
So, maybe you can believe that eBay has something to not talk about. Thata, and eBay has those Warner Brothers Auctions.
:\\\"Crystalline Sliver cannot be the target of spells or abilities.
posted on September 22, 2000 02:11:36 PM
I don't know how they can claim these tapes remain their property if they do not have any mechanism in place for their return. It certainally would be easy to send a return mail envelope with each. Seems to me otherwise they are pretty much abandoned. If they were in the trash they would be fair game for whoever wanted them in a lot of states without privacy/trash laws.
posted on September 22, 2000 03:17:40 PM
mac - I agree, but, the law is the law.
My gripe is that eBay canceled one of my auctions, then NARU'd me when I listed it a second time. They canceled mine based SOLELY on THEIR interpretation of the way I worded it (even though I used the exact wording I was told to use by the copyright holder!), yet they allow these others to continue when they are CLEARLY illegal ...
CS - a movie prop is NOT the same thing ... sorry!
posted on September 22, 2000 03:42:44 PM
How about selling a package of popcorn and GIVING them a tape to watch with it?
"Up for auction is one brand new package of XXX brand microwave popcorn. I am enclosing this brand new package of popcorn with a FREE unopened VHS tape of Seinfeld Episode #7,958 which was sent out by the studios in hopes of garnering an Emmy nomination--and it WORKED!
So, enjoy your popcorn! Thank you for looking...Happy snacking!"
Of course, I am not sure if this would be a problem as far as Ebay regarding freebies and bonus items. You would have to check that out. Notice, nowhere did I say it was a bonus!
posted on September 22, 2000 03:56:07 PM
Hi labbie ... good idea about the popcorn
It has been tried. One guy was selling a toothpick (with a free tape), and several have tried the "episode guide" (with tapes) routine. All busted by the eBay CyberCops.
I tried a neat one - "Animated Episode Guide". It got taken down almost immediately after I listed it. Guess how? Auction interference by another eBay member.
These auctions (not mine!), btw, were not for Emmy tapes, but rather multigeneration EP dubs that aren't worth the tape they are put on!
I wish I was unNARU'd ---> just <--- so I could try different combinations of words. I can word an auction for legal SP Hi Fi master tapes (my auction) in such a way that NO reference to tapes appears anywhere in the listing. I could probably simply include my 'trading' name and where I do my tape trading, then ask the lookers to go there.
posted on September 22, 2000 04:01:18 PM
ah well, or try Yahoo...?
Or in other auctions I know you are NARU from Ebay, but perhaps other venues?, add a sig line that leads to a web site that lists the items being traded?
posted on September 22, 2000 05:05:12 PM
There must be a mountain of promo CDs on eBay. I purchased about five or six. I know one big eBay CD seller sells them. I am surprised no one goes after that one. The problem is that this sort of stuff is riddled with thorny and largely unenforceable procedures. I have found promos all over creation.
I hope they eventually realize they have hoisted themselves on their own petard.
posted on September 23, 2000 07:06:21 AM
cheeses - which one? There's 300+ of these items listed and the number of different sellers has to be at least 50!
It would make more sense for eBay to come here and try to justify their reasons for knowingly allowing this illegal activity to occur on their site. But, that'll never happen ...
. Warner Bros. is the exclusive owner of all rights in the XXXXX television series, including without limitation, all trademark rights and copyrights (hereinafter referred to as the "XXXXX Copyrights and Trademarks"