posted on January 7, 2002 07:41:34 PM new
The Cause No. is GN200046, the style of the case is PATRICK WU vs. EBAY INC. The case was filed in Travis County, Texas. The issues involved are breach of implied contract, interfering with existing and propspective contracts, caused by eBay's arbitrary and capricious action of canceling one person's auctions while leaving other people's auctions of similar nature or depictions untouched.
[ edited by wupi on Jan 7, 2002 07:45 PM ]
posted on January 7, 2002 08:01:07 PM new
At last! It is the arbitrary and capricious nature of ebays rulings that are the root of the the bad feelings many sellers have for ebay management.
If it was a level playing field, and we knew the rules were evenly applied, that would be one thing; instead ebay is a lot like the IRS. You are guilty until you prove your innocence and the delivery of that proof is no guarantee you will be vindicated. Any decision the IRS makes on one case can not be used as a precedent in deciding a similar case.....sound familiar?
I hope you are able to give us more information the suit and its progress. I would love to see how Kevin Purseglove will spin this one. Try this Kevin: "It is obviously a frivilous case filed by a disgruntled seller that has no merit." Yeah, right.
This could be a landmark case. It's a question that needs to be answered. Every seller who has ever had their auctions closed down arbitrarily will agree that it is done by some competitor reporting a rule infraction, real or trumped up. They are out of business while dozens of others with the same infraction, real or imagined, continue to run.
How about the confusion over double listings on free listing day? Half the ebay staff said one listing only, the other half said double listings were fine. It all depended on the time of day and comment thread you were reading. You might say decisions at ebay tend to be slightly arbitrary and capricious.
posted on January 7, 2002 09:24:06 PM new
eBay will reply that with ten million auctions listed, they can't possibly review every one. eBay relies on its "community" to bring offending auctions to the attention of SafeHarbor. eBay will point to its VeRO program as an effort to combat copyright violation.
With a half-million (or whatever the figure is) new auctions listed each day, I don't see how eBay can possibly police each one. If your auction is reported, eBay will review it. Proving that eBay ends auctions for no good reason is another problem, because even if they did, that is part of the user agreement.
The argument you are using is like the guy who's caught speeding and comes to the judge with, "everybody else was speeding too." It holds even less weight, because eBay is not governed by laws, but sets its own policies.
I wonder, what remedy would you suggest? Should eBay hire an army of 50,000 support personnel to review each auction before it is posted? Should they end each auction that may be a violation of someone's copyright, just to be fair to everyone?
posted on January 7, 2002 09:50:57 PM new
The speeding ticket analogy does not apply in the commercial setting, there is a whole different standard and set of reasoning which is applied.
Claiming that your operation is too big to actually police holds no merit either. If it were every large corportion would be shielded from liability for employee acts such as sexual harassment or product liability. Besides, eBay could continuely search their site for violations with software at very little cost or effort.
This does not mean that eBay won't win the case. What it boils down to is the intent of Congress in passing the DMCA. For instance, was it Congress' intent with the DMCA to shield ISPs from damage awards if the act was complied with negligently ? Who is liable for damages when competitive advantage is given when the rules are not enforced uniformly ? What duty does eBay have when violations are obvious, or it is obvious that the VERO report is in bad faith ?
The way the rule is applied now, an owner of certain IP or other rights could create unfair competition on the world's largest online sales venue by selectively reporting violations. A monopoly could be created without market oversight by using VERO.
But the big question the interference with contract claim will flesh out is the "just a venue" claim. It is not clear from what has been posted whether this was a VERO case or a case of eBay acting on its own volition. If it acted on its own volition, it weakens the "just a venue" position.
posted on January 7, 2002 09:53:30 PM new
No doubt that may be part of eBay's arguments. Didn't that MP3 music swap shop (or whatever its name was) make the same argument that it could not possibly police all activities? Didn't the court make it do that?
Luckily, the section I was listing under has only a thousand or so items, and it took me less than 2 hours to find enough evidence that eBay didn't even try. There is a big difference between "cannot possibly cover everything" and "does not even try to cover whatever it can."
eBay is governed by law. Any entity enjoys the protection of the government is governed by law. It has no unfettered freedom to do whatever it wants without abiding the rules and laws of the United States and the local government.
The issue is not whether eBay checked every listing, but whether eBay's action was arbitrary and capricious.
posted on January 7, 2002 10:08:13 PM new
This lawsuit is not related to any copyright issue. The items were original photographs. While eBay canceled some photographs of one seller that it deemed "inappropriate," it looked the other way, or didn't look at all, with photographs of other sellers'.
posted on January 7, 2002 10:11:36 PM new
Under the DMCA, eBay or any ISP doesn't have to police their site, they need only act when the actual owner of the IP or other rights properly notifies them of a violation.
But what if the ISP does attempt to self police the site, as eBay may be doing ? Does the ISP then have a duty to do it fairly and completely ? This issue isn't directly addressed by the DMCA.
If there is no duty for fairness and completeness, ebay could eliminate competition for favored sellers who sell at higher prices or list more items etc. and generating better revenues for eBay.
posted on January 7, 2002 10:36:27 PM new
Good luck. I give you a 1 in 100 chance of winning. Any judge that lets you win a case like that would be crucifed for trying to harm the darling of the internet. Any win in the case would be appealed and appealed and appealed. Got lots of money?
posted on January 7, 2002 11:14:48 PM new
I don't want you to think I'm taking eBay's side, I'm just suggesting what eBay's response might be.
Claiming that your operation is too big to actually police holds no merit either.... Besides, eBay could continuely search their site for violations with software at very little cost or effort.
But the issue is not whether infringing items are sold at eBay, the question (or claim) is whether eBay acted arbitrarily and capriciously by ending one seller's auctions while ignoring others.
Since photographs were mentioned, let's take a sample case: photos of the damaged World Trade Center. While not illegal, that type of auction is not allowed by eBay.
A search for "world trade center" turned up 2777 items and a search for "wtc" turned up 1127 items. That's over 4000 WTC items. If eBay were to aggresively enforce its policy re: WTC items, that would mean 4000 auctions would need to be reviewed (approximately every week) by a real live human being. Now multiply that by all the possibly infringing and banned items (pornography, nazi, ivory, CDs, designer purses, etc.) and you've got an impossible task.
Really, if you're going to adopt that attitude, then you'd have to suggest that every auction be reviewed. We're not just talking robots reading the ads. It would require constant intervention by eBay's legal staff to decide which auctions should be ended. And hotshot lawyers don't come cheap. Certainly not for $.30 cents an hour. eBay will, however, say they make a good faith effort to reduce infringing items, and they can pretty much back that up.
The flip side of the argument is this: If eBay ends one infringing auction, it must end all similar infringing items. I don't think that idea will hold up.
Since eBay can't ignore auctions that are reported, eBay is stuck between a rock and a hard place. Either ignore all, or be faced with the impossible task of policing every auction. Or be accused of selective enforcement.
posted on January 7, 2002 11:30:37 PM new
eBay can and does ignore reported auctions that are infringing IP rights. eBay is only obligated by law to take down an infringing item if the actual owner (or agent) of the IP reports the item and then only if the items is reported in the proscribed manner.
eBay may also be forced to apply their rules equally and uniformly. The court will sooner or later have to look at eBay as more than some private flea market. eBay will soon have a monopoly in the online sales market.
Enforcing their rules in a capricious or unfair manner will not be looked at as how hard it will be for eBay to do it fairly and uniformly, it will be looked at in how it affects the market and competition. The courts rarely use a cost benefit analysis in these cases. If they did they could never act in any manner that has any impact on commercial interests. It is always less expensive for a company to do it their way than to do it the way the law may demand.
This voluntary policing stance also tends to erode their "just a venue" position.
posted on January 8, 2002 12:30:42 AM neweBay can and does ignore reported auctions that are infringing IP rights.
Okay, so what? What you're implying is that by ending one auction, eBay assumes some kind of responsibility vis-a-vis other similar auctions.
eBay may also be forced to apply their rules equally and uniformly.
As in your previous post, you are implying some kind of favoritism. I'm not sure it matters, but do you have any concrete examples? How about Microsoft and VeRO? eBay has little choice there. When Microsoft points out a [possibly] infringing auction, does that require eBay to research every auction for Microsoft products?
eBay will claim it treats all sellers equally. Remember how they threatened OneCentCDs, a very top seller, over a minor infraction?
eBay will claim it makes a good faith effort. How about online fraud? When a big stink arose, eBay started the insurance program. They've got SafeHarbor and VeRO to deal with seller abuses. They already have a large support/investigations staff. But expecting eBay to police every auction is not reasonable. The cost would put eBay out of business.
So you are throwing the baby out with the bath water. In order to be fair to everyone, eBay must actively police every auction. With ten million auctions running at any one time, that is just not possible.
BTW, I agree eBay is a monopoly. They have used their monopoly powers by refusing to allow sellers contact with previous customers. That, IMO, is restraint of trade. eBay claims that without eBay, there would be no customers. One could also argue that without sellers, there would be no eBay. It is only by right of monopoly that eBay can do this.
There are areas where eBay should be tested, but I don't think this one will succeed. Still, I think it's a good idea. The law will eventually catch up with eBay.
posted on January 8, 2002 08:18:56 AM new
Okay, twinsoft. Before you declare victory, let me offer you a little reality check.
The court is not going to be interested in what you think or believe, unless you are an expert witness or a juror. So, facing that reality we have to follow the other rule, the IRAC rule.
The IRAC rule requires us to look at the Issues and Rules, then Apply the facts in the case to the Rules before we reach our Conclusion.
Now try your arguments following the IRAC rule and let's see if it will be more convincing.
posted on January 8, 2002 08:41:16 AM new
Sorry if I seemed to be "declaring victory."
So, what are the rules exactly? If I understand correctly, you are saying that since eBay ends [an] auction, eBay is therefore obliged (or required) to end all similar "offending" auctions. If that is the case, what are you basing that opinion on?
BTW, I have been in the same position, and when eBay ended my auctions and I sent a list of similar ones, in many cases eBay did not take action.
posted on January 8, 2002 09:17:10 AM new"BTW, I have been in the same position, and when eBay ended my auctions and I sent a list of similar ones, in many cases eBay did not take action."
That seems to be what this suit is all about doesn't it?
Some sellers get reported, their auctions cancelled.
Some sellers get reported, their auctions don't get cancelled.
Two sellers selling same or similar items get reported. One gets auctions cancelled the other doesn't.
Why is that?
Once an auction is "reported" there should be a procedure which is applied equally and uniformly to all reported auctions.
The fact they appear to pick and choose what they will or will not do or to whom they will or will not do it to, seems to give a pretty good argument for this type of suit.
Now, to argue they are "only a venue" would probably have some merrit if they took NO action on ANY auction.
Seems to me once they take an action on one auction, they shold then take the same action on ALL auctions of a similar nature.
On a sidebar: Doesn't eBay's TOS say a user agrees NOT to sue them if they use the site, but then adds if they are sued it has to be done in California where their corporate offices are?
posted on January 8, 2002 10:32:06 AM new
It appears that this is not a VERO based case, but based on eBay acting on its own volition to end auctions that violate TOS.
There are analogies in the commercial setting.
What if a business agreed to sell to some people but not others under uniform advertised terms ?
If a car lot were to advertise cars for X price, and then would only sell those cars at that price to customers who had purchased a car there before, would this be allowed ?
While a business is somewhat free to bargain with individuals, but when it holds out universal offers for acceptance as ebay does, can it then change or subjectivly apply the terms of the contract ?
What if you were a sub contractor on a building site and the contract called for you to use X material. Yet you and all the other contractors are using Y material. The Prime contractor then fires you from the job, but allows the other subs to continue the contract still using material Y.
But there is yet another problem with not uniformly enforcing the rules. If it can be shown that eBay ignores reports of violations of their TOS by some sellers, it can be seen as a modification of the terms of service with the sellers. Not enforcing a term of use can act to nullify the term.
posted on January 9, 2002 08:36:36 AM new
WELL, IT'S ABOUT TIME! ALL I CAN SAY IS, "GOOD LUCK!"
Ebay shut down 21 of my auctions (many hours of work) for the same thing....and I wasn't even doing the "half" of what all the other sellers are doing. But "one" unhappy customer out of "hundreds" decided to try and get me in trouble. Ebay didn't even give me a hearing or give me a chance to remove one little sentence that said "Special Order's Welcome." I DIDN'T EVEN KNOW I WAS DOING ANYTHING WRONG....I see it in other seller's auction pages all the time. Some sellers are even allowed to have their Web Site Address as their User Name!
I would sue too, if I had the money to hire a lawyer. EBAY sure has gone down the tubes since it got taken over by the BIG GUYS! If you will take notice, eBay doesn't shut down the sellers that are making the BIG BUCKS for them....they only issue a "warning letter." I "the little seller" wasn't given that much consideration....how come they are??? $$$$$$$$$$$$$$$$
posted on January 9, 2002 08:57:44 AM new
When you said eBay only issued warnings to some sellers but not to others, do you have the specifics or it's just a hearsay? If you have the facts that may be of use, you can testify without joining the suit.
posted on January 9, 2002 09:39:30 AM new
Talk about tilting at windmills.
wupi ... you're not really serious about this lawsuit nonsense are you? If you are, you have more money than brains (to pay the lawyers) - you probably don't need an eBay to supplement your income.
eBay's lawyers will out-razzle-dazzle anyone in a Court of Law, and besides, try to find a Judge who isn't an eBay fan
posted on January 9, 2002 03:53:26 PM new
If this lawsuit is filed in Texas, never underestimate the Texas juries for their ridiculous verdicts in these suits.
I can just see the ads on the Dallas TV stations now, "Have you ever been treated unfairly by the online auction giant Ebay? Call John Getyoudough, the tough smart lawyer----, he will fight for your rights and get you the money you deserve. Call 1-800-Get-Ebay."
posted on January 9, 2002 08:49:38 PM new
Quit the pipedream of beating ebay in court. Even if you did win the appeals would go on forever. Judges have a personal reputation to uphold. A win against ebay could set off a lot of new cases and the entire judicial system would look at the judge and scream "Look what you started!"
posted on January 9, 2002 10:50:59 PM new
I don't see, even with Reamond's examples, how eBay is obliged to act as you say. You mentioned "The Rules," and I asked what those rules are. No reply. I hope you've got more than what you presented here, which is nothing.
posted on January 10, 2002 12:16:50 AM new
I am sorry, twinsoft. This is not a Contract or Business Tort class and I am not a law professor. I only provided you with the steps the court usually follows to analyze the issues, so any meaningful argument is expected to follow the same method of analysis if it were to be convincing at all.
The issue is whether eBay may arbitrarily and capriciously cancel listings of one seller while allowing listings of similar nature or depiction of others, which eBay claimed it violated its rules, to remain. My argument is it may not. There is an expectation (an implied contract) that a business (such as eBay) will apply its rules, if any, to its sellers equally. That is the rule that I may be arguing. The evidence (or the facts) will show that eBay while canceled listings of one seller it considered violated its rules, left many listings of others (also violated its rules) to continue and the auctions to end normally.
Not being able to look through every listing is not going to be convincing in this case, because there are only around 1,000 items in this category. Divide that by 7, which is typically the length of a listing, there are only around 142 new listings end and begin on a given day. How long does it take to go through 142 listings? Even if it were to go through all 1,000 of them, it wouldn't take that long, especially in this case, where only the photo is the subject, and one doesn't have to study the photos.
posted on January 10, 2002 03:21:00 AM new
Before there any more comments about armchair lawyering, remember where this discussion was started.
I doubt that the courts will want to get involved with how ebay is enforcing its rules unless the original poster can prove some form of discrimination (race, gender etc.). Ebay may feel that random or spot enforcement is a more economical alternative. Will a court want to decide how effective the policing must be?
If the original post is true, at least there is an actual lawsuit, as opposed to the posts that have threatened them (and oddly enough, never come back to update us all on their progress).
posted on January 10, 2002 07:54:58 AM new
I don't know what you are basing your premise on, but apparently you think you have a valid principle. I do wish you luck, because win lose or draw, there need to be boundaries, as eBay (like Paypal) is the only game in town and many people depend on eBay for their livelihood. I dare say we've all had interactions with the vague and mysterious SafeHarbor.
I agree with Damaris, there is a difference between discriminatory ending of auctions, and allowing offending auctions to run through oversight or inattention.
Not being able to look through every listing is not going to be convincing in this case, because there are only around 1,000 items in this category.
Yes, but that is only the auctions that relate to your item. eBay ends auctions all the time, and not just photos. As I pointed out above, there are many different kinds of "prohibited" items, and for eBay to do a physical search and review of every possible offending auction would be impossible. It would require more than just intervention by SafeHarbor; in many cases eBay's legal team would have to be pro-actively involved.
I think you have a point, but it will be difficult to prove. Good luck. PS, I am not a lawyer. I don't even play one on TV.
posted on January 10, 2002 10:39:22 AM new
<The issue is whether eBay may arbitrarily and capriciously cancel listings of one seller while allowing listings of similar nature or depiction of others>
Is it illegal to do this?
I got stopped by a cop for turning right where it was posted "no right turn on red" and he only gave me a warning. Whew!
I assume other people in this city, sometime in the last 50 years have gotten a ticket for the same offense. Did the cop act illegally by arbitrarily not giving me a ticket, just a warning?
I got a warning from Ebay that I was violating the rules. I had a hundred magazines for sale and was selling them 3 at a time - "Pick any 3." I had gone through about 6 auctions this way when Ebay informed me not to do it again. They said I could finish the auction currently running. I had good feedback on my other auctions from this series and the complaint must have been from a competitor. I didn't think they were breaking the law, just being nice to one of their customers who unknowingly strayed across the line. Fortunately, I have sold most of them during the last 2 FLD's.
I had another auction stopped by ebay. I violated their Nazi rules, they said. I had a game about World War II for sale and one of the pictures had a german soldier with a swastika on his uniform. Sheeesh! This is common with games, books, etc. about World War II. However, mine seemed to be the only one stopped. The only reason I can think of was that I got someone mad on a message board and they complained.
However, it had a happy ending. I legally relisted it with the title "Illegal WWII game." Then I put the required disclaimer in the description, "Due to the laws of Germany, Italy, France, and Austria, people from these countries may not bid on this game and I am not allowed to ship to these countries." It sold for twice as much as other games of the same exact title.
"When life hands you lemons, make lemonaid."
I guess the question comes down to "Can a person make some money following ebay's rules?" I would say yes. Sometimes ebay does things that irk me. But, I find it more profitable to simply comply.
My parents own a retail store. The hoops they have to jump through are rediculous. Any limitations Ebay puts on us are minor. And the profit margins are so much more.
[ edited by relayerone on Jan 10, 2002 11:02 AM ]