posted on April 22, 2001 07:20:13 PM new
You DO NOT have to be a VERO member to report an infringing item and have it taken down.
All Vero membership provides is a fax and email system instead of using snail mail to send the forms in. But you still have to snail mail a hard copy in the first time as a VERO member. VERO provides a short cut only with its fax and email notifications.
Any ISP or "venue" that receives a take down notice in the proper form is obliged to take down the offending material or face possible liability themselves. The notice need only contain the information as described in the Federal statute and owner/agent signature.
posted on April 23, 2001 03:46:57 AM new
Actually, you're right and you're wrong. Some items are not allowed by ebay (kidneys, live animals, etc.). Anyone can report these and they'll be taken down.
But - under the VERO program (which protects 'intellectual property', only VERO members can report infringements. Here's the link:
Again, this makes sense. Ebay has no real way of determining if something is a fake Gucci purse or whatever. They can't really trust every individual that might report something since they could be acting maliciously. Ebay only acts on the VERO members complaint.
posted on April 23, 2001 10:04:12 AM new
If only a VERO member can protect their intellectual property on eBay, then eBay is in violation of Federal law, which they are not.
The VERO program is only an expedient to protecting Intellectual property, and not necessary to have material taken down.
Anyone who is an intellectual property owner and has cause to believe that a listing is infringing need only submit the proper paperwork to eBay and eBay must take it down or face liability. Do note that the complaintant must aver that they are the owner or owner's agent for the ISP to comply. A non-owner can not demand the infringing material be taken down. That is why eBay does not take down infringing material when the non-owner complains to eBay.
I am not a VERO member and have had infringing items removed from 3 sites including eBay. Being a VERO member is not necessary. However, instead of having to send a letter snailmail for each incident, VERO allows you to send an email take down notice, which allows compliance much quicker.
As many others barbarake thinks that what eBay proscribes is law, when it is not.
The DMCA does not require that a complaintant be a member or subscriber to any program to exercise take down by an ISP of infringing material. All one needs to do is be the owner of the intellectual property and submit the proper paperwork to the ISP.
posted on April 23, 2001 12:29:48 PM new
eBay is a VENUE. It is not up to them to determine if the Gucci is a fake. As to protecting everyone from bootlegs, this would probably be 1 auction in a thousand. Vero's main purpose is to glom every dollar it possibly can, even if it is not legal. The main push for the "first sale doctrine" was video rentals. The rental industry (I have the oldest surviving video store in NJ) was created back when the studios wanted a $100 and more per tape. Tapes from the period are even marked "not for rental". The first sale doctrine is the only protection you have from limitless greed. It says you own it, you can do what you want with it. Could you imagine buying the same album 3 or 4 times??? One to listen at home, one for the car, etc, etc.
The first sale doctrine means it is legal for you to sell it, period. The only reason Vero exists on eBay is because the people whose auctions are pulled cave in and do nothing. It's not worth the effort to fight. But if those same people all started filing their own nuisance lawsuits, eBay will flip flop in a second. It is the way of the lowest common denominator. We live in a country where 6 people can get letterhead printed and influence what you can buy and what you can watch on TV.
posted on April 23, 2001 01:16:12 PM new
Hello,
Could the originator of this thread, the one who had their auction cancelled, please contact me at [email protected]? I would like to address this issue with an eBay representative I work with, and include it in our monthly bookseller publication Bookseller Monthly in our May issue. I would like to get the specifics of the situation as well as any measures you have taken to inquire about reason it was done and if your auction was in fact infringing on copyrights, etc.
Joe Spoor
Editor/Publisher Bookseller Monthly
(593 subscribers, 1,000 circulated monthly to book dealers and shows)
posted on April 23, 2001 01:31:20 PM new
For purposes of DMCA, eBay is an ISP because it controls posted content.
No ISP or VENUE is required to determin what is infringing.
The ISPs cut a deal with Congress on the DMCA. Prior to passage of DMCA, publishing an infringing work could cause liability to the publisher.
Due to the nature of the internet, where every user can basically post material all over the place, the IPSs knew that liability could put them out of business and/or scrutinizing everything everyone posts would be cost prohibitive.
To shield the ISPs from suits, Congress established a law for a protocol for intellectual property owners to protect their interests on the internet.
This law requires that the OWNER, and only the owner of the intellectual property [ or bona fide agent], to communicate certain information as prescribed by the Federal Statute to the ISP regarding the infringing matter, as well as declare under penalty of perjury that to the best of his/her beliefs, the information presented is true, and thus place on the document his/her signature and contact information.
Once the required information is received by the ISP, the material must then be taken down, or liability may ensue against the ISP also. The ISP is under no duty to determin if the claim has merit, only that information presented complies with the Federal Statute.
However, it doesn't stop there. The offending person can file a counter-notice, under penalty of perjury, that they are not infringing and send it to the ISP.
The ISP then notifies the complaintant, and the complaintant has 10 days to commence a legal action for the material to be removed. If the complaintant fails to act, the ISP can allow the material to be re-posted without liability to themselves. BUT, this does not relieve possible liability of the entity that posted the material or prevent injuction or other legal remedies by the complaintant.
Regarding first sale doctrine - everyone better pay attention to this issue and what our Congress is doing as well as what intellectual property owners are doing.
Before it is over, we may find ourselves renting all intellectual content with strict or no re-sale rights.
Already DVD players are being made that will only play certain versions of DVDs, generally determined by regions of the world. A DVD for North America will not play in an European DVD player.
If you ever read the shrink wrap or lincense agreement for software you will be surprised also on the limitations and why many software products are pulled from auctions when the software is not even bootleg.
posted on April 23, 2001 01:49:24 PM newreamond - I'm sorry, you are correct. In your original note you said that
"You DO NOT have to be a VERO member to report an infringing item and have it taken down. "
I took that to mean that just anyone could report an infringing item. I didn't realize that you meant the intellectual property owner is the one reporting it.
And you're right - you don't have to be a VERO member - but you do have to be the owner.
posted on April 24, 2001 12:01:29 AM new
Maybe things are finally starting to sort out...in the past, eBay would pull auctions on third-party complaints or by doing their own sweeps of some categories (they used a different form letter for ending those "appears to violate..." auctions than if they were ended by direct request of a VERO). Non-VERO owners can also have auctions removed but have to jump through a hoop or two to claim they're the owner. Which helps keep the spiteful riffraff (or competing sellers offering the same thing!) from making mischief.
What may be needed is stronger statutory law to guarantee people the right to resell used items. At their worst, some VEROs just don't like the idea of selling used items because they think it hurts the market for new ones. They give the rest a bad name.
posted on April 24, 2001 09:45:40 AM new
Sellig used items does indeed hurt sales of new items.
It is interesting that we have never had a used market as huge as eBay has created.
Authors and publishers have compalined to Amazon regarding the advertising of a used books title on the same page as the new book.
ALL intellectual property owners are researching ways to thwart the secondary markets of their material. Remember, they receive nothing from secondary sales.
Microsoft is attempting to do this by offering the paid use of their applications over the internet. The site also stores your data - the system is doomed to failure. Eventhough you may save money on the price of the application, I don't think anyone wants MS to control and possess their data and application access in this manner.
The first sale doctrine may succumb to the so called shrink wrap contract doctrine. A notice on the shrink wrap of a product states that by opening the product you agree to no re-sale. Shrink wrap contracts on limiting product uses have held up in some courts.
The private personal use doctrine also is upheld - this is what video and DVDs use to prevent public performance.This opens a new can of worms with the internet.
Sharing applications and movies over the internet is now possible. Can I allow off site persons to view or use applications from my PC ?
The corporations own our Congress and government. You can bet that new laws will weigh heavily in their favor regarding what you actually own and how you may use or dispose of it.
posted on April 24, 2001 07:37:17 PM new
Just an update for anyone who is interested. I wrote to both eBay and Fox Pictures to see the process through. This is the email I received back from Fox, using the email address provided to me by eBay.
Ms. XXXXXX:
We believe you were misinformed by eBay, as Fox has no record of requesting that eBay end an auction for this particular product. If you need further assistance, please forward to our attention the correspondence you received from eBay when the auction was ended.
Some very good points. I only hope people rebel if they see limited law-enforcement and court resources being used for something like suits or even criminal cases over resales of used materials. Sometimes they push too far and we get a ruling like the Betamax case.
It IS over money, though...no mistaking that. I bought a video tonight on half.com that was (and I think still is) marketed only by direct TV offer at $19.95 plus postage for $3.75 plus less postage. No doubt the maker would try to pull the stops to keep more people from doing that if more people figured out they could.
