As I understand the new Law, in addition to making it a Felony offense to sell pirated music and software, the law goes further and provides for punishment of anyone who aids in the comission of the Felony.
Even with ebay's mediocre efforts, thousands of felony's are committed daily on ebaY, as sellers make millions unloading illegal copies of music and software on ebaY.
ebaY's failure to report these crimes to the Fed's is also a real problem. All ebaY does now is VERO the auctions.
I wonder if ebay's "We are just a venue" argument will hold-up when Janet Reno comes calling.
The law says that anyone who aids in the comission of a Felony can be held responsible, especially if their aid to the Felon's continues unabated.
In ebay case, they are liable for aiding the Felons because by their own admission, they do not have the resources to check every item for sale.
If pushed, the Feds could slap ebay with millions in fines for failing to police their own site.
ebaY's only option would be to double their fee's to hire the folks necessary to police the auctions.
posted on September 24, 2000 07:04:19 AM
cheeses -
If you would READ the applicable law, you would see that eBay (as the OSP) has limited liability as long as they promptly act to remove dubious material THAT IS REPORTED TO THEM!
posted on September 24, 2000 07:49:01 AM
abacaxi ... correct. But, I wonder what the law will say when it is shown that eBay does not react even when they are notified. In the case of Emmy Consideration video tapes that they allow to be listed and sold on their 'venue' (over 300 right now), they have been notified by me on several occasions, their own lawyers, and as of last week, lawyers representing Warner Brothers. Yet, they knowingly allow this activity to continue.
Personally, I have given up trying to get a rise out of eBay on this (I have emailed and spoken to just about every eBay employee about this during the past month!). I am now going to let the lawyers do their thing while I sit back and watch the fireworks.
It will be VERY interesting to see how eBay tries to backpeddle their way out of this one
posted on September 24, 2000 10:52:13 AMAll ebaY does now is VERO the auctions.
Excerpt from eBay's SafeHarbor pages:
"Under eBay's privacy rules, our attorneys will provide important records about pending and past auctions with an official request from law enforcement officials. Please inform the police officer handling the case that eBay will be pleased to cooperate in the investigation, and ask the officer to contact eBay at the email address we've set aside for law enforcement organizations ..."
posted on September 24, 2000 11:11:08 AM
What I find strange is that eBay themseleves, with no input from anyone else including a VeRO member, will cancel an auction by a small time seller (like me) based SOLELY on THEIR interpretation of how the auction is worded. These cancelations are the result of another member, probably a competitor, sending eBay an email about a 'possibly infringing item'. In my case, VeRO had nothing to do with my auction. In such cases, there is NO investigation by eBay in spite of what they tell you. How can they investigate when they have no idea of who to talk to to verify legitimacy of the item, and when they do not involve the accused?? This is "guilty until proven innocent", and the accused never gets an opportunity to prove innocence!
OTOH, eBay will NOT cancel auctions listed by their big-time sellers even after their OWN LAWYERS, the copyright holder's lawyers, and the MPAA have told them that these items are illegal to be sold on their venue.
posted on September 24, 2000 11:21:13 AM
Do Emmy consideration tapes really fall in the same category as illegal or pirated copies? I don't see how the studios sustain any actual damages from their sale and the copyright law seems to specifically exclude their sale or disposal as an infringement.
"Sec. 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord
(a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."
The studios, as the legal holders of the copyright, are the ones legally making the tapes. They then distribute them with no request, requirement or mechanism for return, effectively transferring ownership. Their desire to keep the tapes in the exclusive custody of the elite group of academy members does not seem to be supported by the copyright laws.
Does a "not for resale" warning legally confer some type of retention of ownership or is it an attempt to override copyright law? Have the studios actually prevailed in any kind of action regarding the sale of Emmy tapes?
posted on September 24, 2000 11:57:42 AM
The studios don't lose any revenue when Emmy tapes are resold. I agree 100% with you that their restriction on these sales is difficult to enforce. There could, in fact, be some benefits to the studios if they allowed these unused tapes to be sold. Maybe the buyer has never seen "Malcolm In the Middle", and after seeing an ep or two on an Emmy tape, s/he may tune in to watch the show every week.
But, they do consider resale of these to be copyright infringement.
Many of my trader friends have argued this for years with the MPAA and their members. I know 2 fellow tape traders who have had their entire collections confiscated as a result of MPAA lawyering.
Based on a copy of a current letter from the Warner Brothers lawyers to an Emmy tape seller, which eBay have in their possession, they are very concerned about the sales of Emmy Consideration tapes on eBay. I don't know enough about legal threats to know if they would follow through, but, if I was Pierre le Ebay I think I would at least be a little bit concerned about potential law suits being filed against him and the other directors of eBay.
posted on September 24, 2000 12:14:55 PM
RB, do you think it is possible that, notwithstanding the legal threats, that Ebay's lack of action is a confidence that it would prevail in any action (and maybe the studio lawyers realize this as well). Maybe a suit with an equal amount of muscle on both sides would finally settle the issue of whether these sales are in fact an infringement of copyright.
posted on September 24, 2000 12:19:03 PM
If the Emmy tapes were sent to judges who AGREED before getting the tapes that they would be returned to the sending organization, it is one thing.
But if the tapes are just sent to anyone who might have a vote or be able to nominate a show, with no contract before they are sent, they end up like radio station promos and the books that get sent to reviewers ... property of the recipient.
posted on September 24, 2000 12:34:51 PM
abacaxi-that brings up an interesting question. Do the academy members agree to any restrictions on the disposal of this type of material when they become members? And would this restriction be enforcable upon a third party that obtained possession of the tape? These tapes are sent to the guild address of record, which is often the agent's or business manager's address, not the home address of the member. These tapes then become up for grabs by the employees of these firms because the members do not want them.
posted on September 24, 2000 12:44:26 PM
"The end of ebay could be quite near . . . "
On this i$$ue? I don't think $o. It $eem$ to me that no big money maker EVER gets badly nailed by the law unle$$ there'$ a large public outcry. If it ever get$ to the point where some action i$ taken, eBay *may* pay a fine with no admi$$ion of guilt or liability. Money talk$.
posted on September 24, 2000 07:33:59 PM
Firstly, it wouldn't be the Feds - it would be lawyers representing the copyright owners.
Check out this latest piece of eBay bullcrap that I just received:
Hello,
We have reviewed the information you have brought to our attention and would like to explain eBay's policy with respect to reports like yours. eBay is not in a position to make judgments about the authenticity or authorized nature of auction items, except in the most extreme circumstances. This may mean that we cannot remove the item about which you contacted us. In some cases, we refer the information to the owner of the rights (copyright, trademark, etc.) involved, if we know who they are and how to contact them.
Although you may be extremely knowledgeable about these types of items, we often cannot remove items upon the representations of third parties whose credentials we cannot verify, unless of course the alleged
infringement is obvious on its face. That is why we strongly urge you to notify the rights holder of the suspected infringement and encourage them to join our Verified Rights Owners (VeRO) Program (formerly called
Legal Buddy Program). This program enables them to request the ending of allegedly infringing auctions.
To me. this is simply another plea from eBay to get more people to sign up for their VeRO program.
How many of you have had eBay cancel YOUR auctions that had nothing to do with VeRO? I suspect thousands. So much for their argument about not removing items upon the representation of third parties whose credentials they cannot verify. In my case, my auctions were canceled simply by an email from an eBay POWER SELLER. EBay, nor the person who 'tattled' on me had any idea of what I was allowed to sell or not allowed to sell, or who owned the copyrights. My auctions were canceled ONLY on the word of an eBay member who gives them more money than I ever could ...
posted on September 24, 2000 11:56:12 PM
I've always said the lawyers will be the death of eBay, but I don't think it'll happen this way. As per the Wired article in the original post, Janet Reno is going after the organized-crime syndicates. These guys already operate in some parts of the world, churning out pirated CDs and VCDs for local markets.
(Piracy, unlike bootlegging, displaces sales of "official" product because the pirated item is a duplicate of the official one, rather than some obscure thing of interest only to diehard fans.)
If someone close to (or well-supplied by) the pirates was operating on eBay, though, they wouldn't be too hard to spot. Large volume, price undercutting, Dutch auctions, etc., could raise caution flags. The more buyers there are, the more chances someone will tell the fake from the real (especially with all the holographic stickers and seals and other hard-to-counterfeit things that some producers are using these days).
Complain to eBay and they might pull the auction. But the industry associations like the SPA or MPAA or RIAA might go further and pose people as buyers and then try to bring in the FBI in after collecting items from the seller. The more that's sold, especially of the same item, the harder it is for the seller to claim to be an unwitting middleman. It's really no different than the actions taken against this sort of thing in the offline world.
