“Yes, it's an online auction site, but, as eBay pointed out in its response to the claim, it's more of an intermediary or conduit of information than a traditional auctioneer. It functions like a newspaper's classified ad section.”
Again, eBay is pushing-off the auctioneering responsibility to us, the sellers.
EBay admitted in court that yes, they are an auction site, but they are not the auctioneers, WE ARE.
Maybe we DO need an auction license to sell on eBay. If eBay wins the lawsuit, they will effective require us to get licensed.
posted on October 24, 2000 01:41:24 PM
I don't find it surprising that Ebay would use that as a defense. If the courts buy it, I will be surprised. The chances of a Federal Judge siding with them based on that argument are pretty slim.
If the states required all of us who sell on Ebay to get a license to do so, how many of us would be left? Enough to support Ebay? I doubt it.
posted on October 24, 2000 01:50:03 PM
Well you can bey that eBay will never admit they they are the auctioneers.
They they would have to accept responsibility for all the fraud and theft!
Either way, we loose.
If the court rules that eBay is the auctioneer, auction posting will become very expensive because eBay will have to hire an army of people to police the site.
If they rule that we are the auctioneer, then we have to get licensed.
[ edited by raygomez on Oct 24, 2000 01:50 PM ]
posted on October 24, 2000 03:21:28 PM
"Agency" won't help. Agency is exactly what an auctioneer does. The auctioneer doesn't own the property, but acts as an agent for the sale of the property.
Whether these issues of the nature of Ebay's responsibilities are settled in court or in the legislature, it is unlikely eBay or any other "venue" will escape all culpability when things go wrong.
One thing I think that will come out of any legislation is supplying information necessary to become a seller. It will probably include mandatory banking and credit card information, or perhaps even a bond.
eBay's claim of being akin to newspaper's classified ads probably won't wash. Substantial differences include taking of final value fees based on a sale, not falling under the definition of being a news service [classified ads are also considered a place for public legal notices], but instead is strictly a business/trade site. The "ads" on eBay are also etheral and interactive, in that there is no permanent material form. I think damage issues may take the form as when someone is harmed on the property of a Mall or Walmart, the "venue" owner may be liable when reasonable and ordinary care was not exercised by the venue owner.
But the other legal shoe to drop for eBay and other venues will be product liability. When someone is physically harmed by a product that was sold at the venue, will the venue have any liability ? I don't think it has happened yet, but it is only a matter of time before it does.
posted on October 24, 2000 04:11:00 PM
How many small or occasional sellers who are cleaning out their closets and garages or selling stuff left to them are going to go out and get a license if that is what it will take to sell on E-Bay? They are not going to survive for very long under those conditions.
buyhigh
California is a deep pocket's state also, which means that the richest defendant has to pay the claims if the others can't.
That has to be giving Meg and Pierre a tummy-ache.
Assuming a worst case here on-line auctions could become like Peer-to-Peer file sharing services, they pop up and run like the wind until they are slapped with an injunction.
posted on October 24, 2000 07:41:19 PM
Please point out to me WHERE in the article eBay says WE are the auctioneer...Duhhh..?? Did I miss it and I read it 3 times...
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Perspective...
The 10 Commandments: 179 words.
The Declaration of Independence: 1,300 words.
US Government regs on the sale of cabbage: 26,911 words.
posted on October 24, 2000 08:46:43 PM
Well if they want to go to a flat fee to remove taht one problem I can live with that.
Why not run gnutella or something similar and the search will be for files that start
with FOR SALE or AUCTION and we can add words that would descripe the item. For example:
FORSALEdigitalcaliper.html
AUCTIONfineartprintfloral
Who here has used file sharing for songs or something to tell us if that would work?
I am going to sart a new thread on it....
posted on October 24, 2000 09:22:44 PM
What's funny to me is that I do not ever remember paying my newspaper a commission (final value fee) for the sale of the bike I advertised in their listings...
posted on October 24, 2000 11:28:56 PM
California is a deep pockets state and Ebay is a Delaware corporation. That corporation doesn't have such large holdings, and the bulk of the stock belongs to a tax exempt charitable entity known as the Omidyar Foundation.
posted on October 25, 2000 12:34:35 AM
Why is everyone so excited? The decision hasn't come down from San Diego yet. WHEN eBay loses, then it's appeals time. In the meantime, the class action suit against eBay for allegations of (amongst other things) Fraud is close to filing. THEN the poop will really start.
posted on October 25, 2000 01:54:41 AM
I'm going to have to take Ebay's side on this one. How are they going to verify the authenticity of everything that is sold on their site. They can't!
____________________________________________
The avalanche has already started. It’s too late for the pebbles to vote!
posted on October 25, 2000 06:11:46 AM
Read the excerpt below. it is from one of ebay's annoucments. In it it pretty much says in their own words, that they are an auction house.
*** Buyer’s Premium on eBay Great Collections ***
Effective October 30, all items on the eBay Great Collections site will be subject to a 10 percent buyer’s premium on the sale of fine goods. This new fee will be added to the winning bid price and will be paid directly to our sellers to cover costs for value-added services that they must provide in order to trade on the Great Collections site.
Most traditional auction houses charge a buyer’s premium of 10 to 20 percent of the sales price to cover their costs for services that are essential for successful auctioning of high-end fine art, antiques, and other unique collectibles. More specifically, auctioneers collect a premium to pay for value-added services such as authenticity guarantee, provenance research, sales previews, and property storage.
Unlike most auction venues, eBay Great Collections has not charged a buyer’s premium since its launch twelve months ago. By introducing a new fee structure this week, we expect to attract more qualified sellers who might not have listed their finest works of arts on the Great Collections site previously due to the economics reasons. Consequently, this change will make Great Collections a more vibrant online marketplace and improve your buying experience with greater number of high-end fine art, antiques, and other unique collectibles.
To keep the buying process on the eBay Great Collections site straightforward, we will do all the calculations on your behalf. The price that you will see and bid on our site after the introduction of Buyer’s Premium will always be the Total Price -- that is, the bid price PLUS the buyer’s premium. In other words, it will always be the final price that you will actually pay if you win the auction. Customary Final Value Fee charged to eBay Great Collections sellers will be based on the Total Price, which includes the buyer’s premium.
Again, this change only applies to eBay members who choose to trade on the Great Collections site. It will NOT apply to any other areas or categories on eBay.
We sincerely hope that you will come and visit us soon and enjoy our growing selection of quality items at:
http://www.ebaygreatcollections.com/
Thank you,
eBay Great Collections
[ edited by guuuyyy on Oct 25, 2000 06:15 AM ]
posted on October 25, 2000 09:56:30 AM
I keep seeing this "newspapers don't ever charge a commission on the sale" claim. While that may be true for most newspapers, it's not universally correct.
Our local swapsheet charges based on the sale total for the item. No sale, no charge. It's not a percentage of the total, but it is a sliding scale. Sounds pretty close to a commission to me!
posted on October 25, 2000 10:11:33 AM
An auction house collects a buyers premium that is retained by the auctionhouse.
Ebay is allowing the great collections sellers to charge a buyers premium. Ebay calculates the amount but the seller is retaining the buyers premium, not ebay. So, if charging and retaining a buyers premium is what dictates the legal classification of "auctioneer", the "auctioneer" is the seller and not ebay.
MRBucks..you didn't miss anything, your reading comprehension skills are good...there was nothing in that article that said or implied ebay said WE are the auctioneers. Actually, if there was any implication, it was that ebay didn't see the trading on their site as meeting the definition of an auction...meaning neither they nor us are auctioneers.
Uhm, can anybody out there answer me this: I am presuming that whoever loses will simply file an appeal -- so, is it not correct that this specific case will NOT be totally ended for a very very LONG time?
posted on October 25, 2000 12:13:37 PM
Since we are talking about the enforcement of a criminal statute, the court can force eBay (or the sellers) to immediately accept responsibility for their actions.
If ebay wins their "we are only a venue" argument, a judge could rule that individual sellers are personally responsible for complying with the law (Personal responsibility; there is a novel concept).
Regardless of an appeal, the existing court order will be enforceable immediately.
posted on October 25, 2000 02:18:43 PM
The appeals court have been very willing to consider the economic impact vs a business in granting stays of injunctions on appeal (see Napster). Even if the courts stick the sellers with the auction license deal ebay would still be stuck with enforcement as ebay has already set a standard that it will attempt to enforce all federal, state, and international laws.
There was a editorial yesterday on napster that the Gov't/RIAA will never win even if they kill napster because people have gotten used to song swapping.
I would say the same would apply to auctions. There is a vast market of buyers and sellers that is used (addicted) to auctions and will not just quit cold turkey.
posted on October 25, 2000 03:51:52 PM
CHEESES..there are several problems with the statements that have been made in this thread.
The original post stated that ebay admits it is an auction site, which is not what the article states. The author of the article gives the opinion that ebay is an "auction site". Ebay, from what the author of the article reports of ebay's response to the lawsuit, claims it is not really an auction but more of a conduit of information.
The author was writing an article about "legal definitions" and how it might not be possible to apply those legal definitions to internet businesses who have used new business models that were not around when the laws were passed. He is bringing up a question that was asked about N Carolina's and New Jerseys attempt to apply decades old auction laws to internet "auctions". Do online auctions fit the legal model of traditional auctions and our they subject to the same laws.
What ebay is saying is that what occurs on ebay, at least what ebay does, does not fall within the definitions of auctions and that it is not an auctioneer. The author is pointing out how these new business models have to prove they do not fall within the old legal definitions.
If we assume, as the author seems to, that ebay will win this case, we cannot also assume that the court will then say we, the sellers, are the auctioneers.
First reason for that is because we are not a party to the lawsuit. From the reports I have seen on this lawsuit, the plaintiffs are saying ebay is an auctioneer...they have made no claim that the sellers are the auctioneers liable under the law. If they were also making that case at least one of the sports cards sellers would have been named too.
The court can't take that leap from finding ebay is not an auctioneer to finding the sellers are. To do so would fly in the face of all our legal rights. The sellers were not in court to defend themselves...they had no chance to present a case as to why they are not auctioneers...the judge can't find the sellers responsible under this law when the sellers were not named in the suit.
Second, the suit is narrow in scope...it addresses only one law. A law that is really not an auction law but a law that has to do with "dealers" selling sports cards. It is not addressing the laws of California in regards to auctions. This case is not about "is ebay an auction and therefore subject to state auction laws" but rather about "is ebay an auctioneer as defined under the seller of sports cards law".
Third, this case is about a state law that is not transferable to other states. The definition of an auctioneer for this law is in regards to California dealers in sportscards...it doesn't have any bearing on other state's laws.
Fourth..unless the case goes to a federal appeals court, it really can't be used as precedence for the other states. And since the law is a local (state) law, I don't think it would be heard in a federal appeals court...it has no relevence to other states. ( I could be wrong about this point)
The premise of the original post seems to be one of "the sky is falling, the sky is falling" as shouted by chicken little. The only relevence this case has to us sellers is if ebay loses...in that scenario we can expect that the online auction industry as we know it might be kaput. so I think we had better hope ebay wins in this, otherwise we may have to start looking for another avenue to sell our "stuff".
posted on October 26, 2000 07:21:32 AM
Either way, ebay looses. They either a) have to accept responsibility and take what ever course of action is necessary to comply with the law or B) the sellers have to become "licenced" or what ever else they need to do to comply with there local laws, in which case a very large number of them would likely disappear from selling and the "ebay community" shrinks
That's assuming some sort of judgement is made. If not...it's busines as usual.
[ edited by guuuyyy on Oct 26, 2000 07:23 AM ]
posted on October 26, 2000 11:53:54 AM
Cheeses..it would take another lawsuit naming some or all the sportscards sellers on ebay before the court can say the seller is an auctioneer.
The suit is in regards to a California law that was passed to protect the buyer of sports memorabilia from being ripped off. The sports memorabilia field is innundated with fakes, this law was passed to stop the fakes.
Since this is a California law and the case is more than likely being tried in a California Superior court it has no bearing outside of California. Finding Ebay as not the auctioneer (if there even is an auctioneer) does not make it follow that the sellers will be required to have a licence. The court findingas are only applicable to California and in California auctioneers do not have to be licenced therefore the sellers will not be forced to be licenced. A judge in a California court cannot force the residents of other states to follow the laws of their state. Nor can he interpet the laws outside of California and make a ruling binding to residents outside of California.
If it were to move up to a federal court we would also not be forced to be licenced because there is now no federal law that requires a licence for auctioneers.
This is not a case about licences for auctioneers...it is a case about responsibility for the sale of fraudulent goods. As sellers, we are already legaly responsible if we sell fraudulent goods. And thats where the crux of this case lies. The defrauded buyers are having little luck with holding the sellers responsible for the fraud on an individual basis so are grouping together to go after the "deep pockets" person instead.
