Slashdot Mirror
Game Companies Sue Yahoo!
Splitzy writes, "Nintendo of America, Sega of America, and Electronic Arts filed a joint class action suit yesterday against Yahoo! for the sale of illegal and counterfeit game products. They say that Yahoo! profits from these sales and is fully aware of the illegal activities. For the full story click here."
guy1: "I really want to kill that guy. He pissed me off."
guy2: "Here, use my gun. It will make it easier for you."
guy1: "Hey thanks!"
Is guy2 guilty of anything? You're damn right he is. Don't see the similarity? If you're dumb, read it this way:
guy1: "I really want to make money from illegally selling software!"
guy2: "Well, we get a lot of visitors looking to buy cheap software. You will make more money if you use our site."
guy1: "Thanks!"
Yahoo! is doing something wrong. They should make efforts to stop this behaviour. It has been going on on their site for well over a year (that is as long as I have noticed it). People sell games, business software, operating systems, etc.
Hi, I'm a moderator, I like to lick cunts that's why I modded this down, just to remind me of last night with my gf. :-)
If Yahoo! doesn't charge for the service and makes money solely off of banner advertising, then they are not profiting from the sale of these illegal items. If 10,000 visitors go to the auctions section, buy an illegal item, and click on a banner ad, Yahoo! makes the exact same amount as if these 10,000 visitors hadn't bought a thing!
They aren't profiting from the SALE of ANY items. They'd probably prefer it if they could maintain the traffic without having to list any items at all! (which require server space, etc)
And a appropriate vulture logo with it, perhaps? :) Then the few of us who are tired of lawsuit news can just put it where it belong with Amiga "news".. :> Jón
Ebay has a group of people set aside to review auctions for legality. They have the power to pull any auction that they deem is illegal or immoral in some way.
I read an article about out it a while back, for I can't for the life of me remember where.. possible wired.
The "team" is only a couple of people. They do most of their work based off of tips given by people viewing auctions. They'll get an e-mail that say something like "This auction is illegal", and they review that auction.
I'm guessing Yahoo dosen't yet have a group like this, or possibly they just haven't been doing a very good job.
Surely this doesn't let Yahoo off the hook, it just lets Yahoo sue the sellers for whatever they have to pay Nintendo.
Steve
see subject
I see even classic Slashdot is now pretty much unusable on dial up anymore.
"You should always side with the company that is allegedly doing the ripping off,..."
Looks like there's always somebody on duty in Redmond : )
I see even classic Slashdot is now pretty much unusable on dial up anymore.
"Sotheby's couldn't auction a stolen 1957 Jaguar, or a counterfeit Picasso as a real Picasso"
As long as they get away with it, that is as long as nobody detects the Jag as stolen or the Picasso as a fake, why can't they? Illegal doesn't mean impossible and unethical doesn't mean un-do-able. Especially if there's money to be made.
I see even classic Slashdot is now pretty much unusable on dial up anymore.
I didn't call it a troll and if I really thought that it was I would probably have just ignored it. Didn't call you an MS lackey, either, just pointed out the (I assume unintentional) similarity of viewpoint. There are a lot who post here whose ethics get very situational with regard to big companies (esp. software, music, movies, etc.)
I see even classic Slashdot is now pretty much unusable on dial up anymore.
It hardly diminishes my point, but you're wrong anyway. Microsoft started shipping something called Office in 1989. The term "World Wide Web" wasn't coined until 1990 and NCSA Mosaic wasn't released until 1993.
No kidding. Of course those things are automated, but that doesn't mean they happen at completely zero cost to the BBS/WWW operator. Somebody had to develop the software tools, install, maintain, debug, etc. Automation turns out to be the most efficient way to spam your brand all over everything; automation alone is probably not the best way to prevent illegal auctions. My point is that Yahoo should care enough to make a reasonable effort. Some combination of allocating a human being to respond to emailed complaints and a software tool to flag suspicious auctions for further investigation by the same person would be enough.
Oddly enough, the two previous centuries were: Where governments crushed personal liberty and individual rights, and called it 'socialism'.
Doesn't look like much has changed except the morons who can't keep their definitions straight.
Sigh. Ok, read this slowly if you have trouble with comprehension:
Yes, they're both forms of economic systems, which amazingly enough makes the comparison a valid one. But governments impose and control them nevertheless.
And the US is by several means a capitalist country. It's not a pure capitalism, but that doesn't exist any more than pure socialism or pure communism.
There's no "h" in Gloucester. I don't believe the company got shut down (the argument against them was that is was illegal to store slot machines in Mass., even though they were actually being used offshore). I'm not sure, but the company may not be coming back due to lack of business.
Unless Nintendo did something like that, or else got everyone who bought one of their systems to sign a contract saying they'll only buy Nintendo authorized games, they have no right to change anyone a licensing fee.
Is this kind of like my DVD player that will only play licensed DVD's and my CD player that will only play licensed CD's?
Because your town and street corners analogy is flawed. Suppose this auction was non-digital, but you still had all the other elements of people with things to sell, people that want to buy them, a place to meet, and price setting mechanisms. Yahoo is providing the place and the mechanism.
If they're repeatedly told by a copyright owner of violations, they're liable. Providing the place, setting up a pricing mechanism, but failing to to perform even minimal supervision of the activities does make them liable in the real world. So it should in this case also.
You don't sue Walmart for selling me the duffel bag that I stuffed the cash into.
I want to comment on that line...
The bags Wal-Mart sells for money stuffing are far superior to any other duffle bags I have used.
Frequently, when the dye packs explode, lesser bags become saturated, and stain the floors of my Honda. In addition, it is perfect for storing the fingers that I have to chop off of hostages.
It's time for Wal-Mart to be recognized for its high quality bank robbing tools.
"Don't try to confuse the issue with half truths and gorilla dust."
Bill McNeal (Phil Hartman)
But that doesn't mean Yahoo! reads each email. Email sent saying 'your auction has been placed' or 'your bid has been accepted' are all automated. They'd have to hire a whole new staff.
oh, um. my bad. I misunderstood you.
still no one can sue microsoft for selling faulty goods can they ?
<p><a href="http://www.burgatronics.net">www.burgatroni
Burgatronics
Do Not Read Burgatronics... It's Evil
Pirating is illegal and if a shop sold pirating tools (even if on behalf of someone else innocently) it would be prosecuted. If you want to distribute pirated stuff, you either have to do it free of charge over newsgroups, or find your self a server in a country where it doesn't apply - like Turkey. The Internet servers are still governed by the laws of the country they reside in.
There is a device known as the Doctor 64, which houses a standard PC IDE CDROM drive inside a case which sites ontop of the Nintendo 64.
.n64, in the root dir of the CD-ROM.
It interfaces with the unit via the cartridge port. A CDR version is also availiable. ROM images [maximimum 100 mb, typically much smaller (Mario64 is actually 8Mb)] are stored on a standard ISO9660 filesystem, using the extension
Fifteen games typically fit ona single disk, and these compilations are sold throughout the markets of Hong Kong.
The CDR version simply grabs the contents of the current cartidge and burns them to a clean disk. You need a PC to eb able to collect the images and make the compilation.
No, I've never stolen an N64 title with it. I'm just interestyed to see how the crack was done. When I want games, I buy Linux ones and support those that support the penguin
"What if you put a server on a ship in international waters with a radio or satelite connection (or even a cable connection for that matter), and use it for totally illegal purposes?"
:)
Cool idea but if say some big corporation gets mad at you for doing this, since its international waters with no laws, they can just sail out with a bigger boat and run you over.
_______________
The point here is about them allowing a crime to be committed through negligence and through refusal to take action.
Or is this because of a principled objection to copyrights in certain areas. Would your opinion change if the crime being committed was drugs being sold or body parts or something similarly nasty? It's still a crime and I believe that anyone who allows a crime to be committed through negligence shares some responsibility for the crime.
Mmmm.. Donuts
Apparently the article is talking about Yahoo's auction site but they don't make that very clear. After the first paragraph the article seems to imply that Yahoo is directly selling pirated stuff.
All sarcasm aside, perhaps the games companies should consider going after the unscrupulous profiteers who are bootlegging their CD, rather than the auction site that can't afford to monitor every posting.
"Freedom means freedom for everybody" -- Dick Cheney
gotta remember those html tags
Insert "non-US companies" between out of and for in most.
Sorry!
-Marc
This TOS seems to be absolving them from getting sued if someone gets ripped off. But if I let someone sell crack out of my house, I can go to jail. Even if I have a disclaimer.
-marc
If they get caught the auction house is liable and could be shut down (there are laws about this kind of activity). Obviously this is not impossible, but that doesn't make it legal.
-marc
Normally the big N and Sega and companies like to go after small companies and individuals... let's see what happens when both are billions-dollar worth corporations :)
Okay, fair enough, poor interpretation maybe :) As for the laws in non-US countries, IIRC both Malta and Taiwan lack copyright laws, making them the obvious place so situate such a site.
Err, what? The original poster was talking about Nintendo (or whomever) being able to prove that they had sent warnings to Yahoo about such auctions. I was saying that they would be able to use E-mail records to prove this. It's got nothing to do with the automated responses from Yahoo's auction service.
You could make an abolute fortune if you played it right. Of course, not being able to ever come ashore in most countries might make it seem less attractive, but something like this is bound to happen sooner or later...
For example, if I tell you that there's a guy selling cocaine on your front lawn, and you don't do anything about it, then you're an accomplice.
If you told me that, I'd be out there like a shot with some cash *grin* But I agree with your point from a legal standpoint.
They didn't even mention who was doing the bootlegging and that kind of thing. All they did was make ambiguous statements about Yahoo supporting piracy. Come on people if you want even a chance to get our support then you gotta give us real information. Is yahoo supporting college kids selling cd collections of roms or is this fulltime big piracy like you see in asia?
It doesn't appear to bode well for Yahoo!. It's kind if hard to say 'I didn't know it was illegal' when the ad says "This is a cdr copy of the game."
Did you read the article? They're suing because of backups of games being sold at Auction on Yahoo!.
Guy2 discovers that he's been burglerized, but doesnt know when.
Guy3 was already killed. :-)
Be thankful you are not my student. You would not get a high grade for such a design
Next, we'll hold newpapers liable if someone sells stolen property via the classified ads.
Gimme a break.
cheers,
Aside from the issue of having actually been told about the bootlegs, are they not also making a percentage of the sales, or a listing fee?
IANAL but, if they knowingly make any money from the auction or sale of illegal/stolen merchandise, shouldn't they be atleast civilly libel, if not criminally?
I think the content arguement would hold up if they weren't actually participating in the auction (e.g. Free auctions like the kind that happen on usenet)
Some people have a way with words, and some people, um, thingy.
The charge isn't even logical in this case -- the original poster said something that seems to go against the grain of the "Slashdot majority," so he stands a better chance of getting moderated down instead of up.
It's hard to whore karma as an AC too.
A wise man once said, "Windows isn't a virus. Viruses *DO* something."
-- Dr. Eldarion --
So, Yahoo could councievably get the lawyers off their backs by (get this) sending the pirates money back!?!?
Simply return the auction fees for any illegal products and they could escape liability AND stick 2 fingers up to Nintendo/Sega? This can't be right, but it seems like the logical conclusion of what you are saying.
- Andy R.
A pizza of radius z and thickness a has a volume of pi z z a
Are they referring to some auction selling that Yahoo hosts, or do they mean that Yahoo actually retail pirated products (which I would find hard to believe)?
Sorry, emmett, but I think your summary might be a little off.
Yahoo doesn't normally profit directly from auctions at all. They profit from page views in the form af some banner-ads, and charge a set fee to list items in a "preferred" manner, which (if I'm not mistaken) has little to do with the item actually selling at all. Therefore they don't profit from the sale.
I seems to me that the case is founded on some pretty thin ice, and any lawyer worth his salt would be able to make a very good defence.
As for Nintendo et all, I would appear that they've taken up arms against what they could find to be the worst-case-example, and if they lose here, the lose the whole ball of wax. Ebay and others might do well to join forces with yahoo on this issue to protect their own interests.
TangoChaz
"It's not enough to be on the right track -- you have to be moving faster than the train." -- Rod Davis, Editor of Seahorse Mag.
TangoChaz
--------------------
Wise men talk because they have something to say, fools because the
Sega and Nintendo between them have contributed far more the gainful use of computer technology than Yahoo ever has
... and much much more. I agree, many (most) of this things got started by someone else and are available at other places, but Yahoo has great UI, it's really fast, and all these things are interconnected in one place. In fact, when I need to find something I only use two sites - Google for keyword search and Yahoo for everything else. By the way, Yahoo is one of the few big Internet companies that actually makes money. These guys ARE good, they are not just some random iwannamakemoneyfast.com.
This doesn't automatically make them right.
Yahoo do a big dull web directory and cash in on the net bubble.
You've probably not been on the site for at least a couple of years. Yahoo is definitely one of the most useful places on the 'Net, the "dull web directory" part is probably less than 5% of what they do now. Want examples? Easy (off the top of my head, I believe they do much more):
- maps and directions
- auctions, shopping, etc. (duh)
- games
- chat, clubs, e-mail
- calendar, address book, free webspace
- bill pay
- movie showtimes
- stock quotes
Yahoo may not receive a direct profit from the auction but they do receive money from ads which are on the auction site. Therefore they do profit by the auctioning of illegal merchandise on their site. IANAL but from a casr I seem to remember awhile back with Compuserve the law seems to say that if you police/monitor a site at all then you are liable for all content on that site. Maybe this has changed or is not true (anyone know?)
Though this analogy doesn't go far enough, since the guy could claim that he was afraid of the seller, or had put up "no tresspassing" signs or something. Yahoo basicly set up some chairs and tables in their front yard so everyone could be comfortable, put signs around the neighborhood saying "lots of stuff for sale here" and then ignored reports of what some people were choosing to sell.
Sounds liable as all hell to me, but thats for a judge to decide.
-Kahuna Burger
...will work for Chick tracts...
It might depend on what the laws are in the port it sails from, and the country where it is outfitted. IIRC, there was a similar thing going on out of Glouchester where a ship would sail people far enough out to be in international waters then open up a casino on board. Regulators were trying to shut them down because they said their only purpose was to avoid the law. Don't know how it turned out.
-Kahuna Burger
...will work for Chick tracts...
>once a content providor starts excersizing editorial control of any content, they become liable for all content on their site, regardless of whoever posted
What, you`re telling me that if you posted a message selling drugs (or whatever) on a Republican party/Big Company site chat room/message board, then they`d be responsible? Lets hope no-one does it and brings it to the attention of the authorites then; that`d be terrible!
P.
i cant see it being too hard to flag messages that contain certain words (warez, backup, cdr etc) for manual inspection, provide a `complain about this item` option, etc...
The only difference between a yahoo/ebay auction, and a newsgroup, where similar things are permitted, is that in the case of newsgroups, no-one bothers suing the owners of the servers the messages are held on, as no-one says `look at us - we host this! click on this banner for some shite you`ll never want` (does anyone actually intentionally click on ad banners?)
The knife manfacturer is responsible for making sure that the knife will not harm the user though. If there were reasonable steps that could be taken to prevent illegal uses then there would also be an obligaiton to implement those.
I think Yahoo should take SOME responsibility for warez. At least they should take down an auction if there is a complaint, and the auction is clearly selling illegal goods.
So who gets juridiction if you administer a site in Malta from the US, and an Australian company complains that a French pirate is using it to sell illegal goods to Japan?
What if you put a server on a ship in international waters with a radio or satelite connection (or even a cable connection for that matter), and use it for totally illegal purposes?
This is a hard one to classify. While I don't think Yahoo! charges for this service they do certainly make money off banners. Can you get common carrier status when a site is still clearly comercial? It could be argued Yahoo! recieves money from sales through the advertising revenue that these purchases generate.
Basically I'm not a lawer and if there are any out there that know this for sure I would be interested to hear.
"Do you think we could wipe out world hunger forever if scientists figured out how to make AOL's Free CD's edible?"-
I believe your going to get the exact opposite of what you believe. :-)
------- What exactly is real?
Grtz, Jeroen
Secure messaging: http://quickmsg.vreeken.net/
This just another big company sueing the wrong guys. Instead of going after the provider of the tools they should go after the guy using it to brake the law.
Grtz, Jeroen
Secure messaging: http://quickmsg.vreeken.net/
Madmen in authority, who hear voices in the air, are distilling their frenzy from some academic scribbler of a few years
Madmen in authority, who hear voices in the air, are distilling their frenzy from some academic scribbler of a few years
Madmen in authority, who hear voices in the air, are distilling their frenzy from some academic scribbler of a few years
Not only can, but have, and are. Get some news from a source other than Slashdot once in a while. One such case was front page above the fold in the papers a couple of months ago.
>The flagrant abuse of the law by both people and companies on the Internet is rediculous. People are always harping on about "freedom of speech" and other such slogans, but at the end of the day this sort of thing would be illegal in the real world, and should is illegal on the net.
Have you spent an hour standing on a street corner lately? The flagrant abuse of the law in the "real world" approximates 100% of the populace in times and places.
The Internet is just people doing what people do. The only difference is that you can see them doing it without leaving your house to go stand on the corner.
Just yesterday some guys in a Penske rental van stopped me and asked me if I wanted to buy a TV or stereo speakers. Not on the Internet or anything! In the "real world." Imagine that. Maybe Sony should sue Penske rentals.
Penske knows it's happening, they should be held liable, right?
I'll also bet that virtually every high street shop has goods in it that are illegal. They don't neccessarily KNOW they are illegal, but they are none the less. Or were produced, transported or wholesaled in an illegal manner.
When such goods are found the goods themselves are confiscated, but the shop is only prosecuted if they had *complicity* in the illegal activity itself. Otherwise virtually any shop keeper could find themselves in the back of black truck at any time.
Of course, knowing that the goods are illegal when excepting them for sale is legally sufficeint for complicity.
Porsche sold each and every 959 at a loss of tens of thousands of dollars per unit.
They recouped their loss by selling more 911s, gaining more contract engineering accounts, and licenseing the technology of the 959.
If I bought a 959 but didn't buy a 911 I am not a criminal.
If a company gives away a computing device in the hopes that I will buy their software to run on it and I write my own instead I am not a criminal.
here is a shorter, but IMHO more useful version of the story.
I knew that they were trying to get them back from musames I didn't know they were suing the auction house?
-Andy
Haven't some big auctions auctioned off art work that was stolen by Germany during WWII? Does this mean the decendents of the origonal owners can sue any auction houses that re-sell some of their stolen artwork?
-Andy
Wait a second here. Unlike eBay, Yahoo doesn't make a cent from things sold on Yahoo Auctions. Whereas with eBay you pay a listing fee based on the opening bid price, and then a percentage of the final sale price, all auctions on Yahoo are free. That's why you get a lot of people there spamming AllAdvantage crap, people selling a few hundred things from their house with minimum bids of 50 cents, as well as bootleg items. Yep. They're quite prolific.
I understand why the companies would be pissed at Yahoo, but I don't understand how they can claim Yahoo is making money off this. Anybody know whats up?
This is Yahoo's Online Auction site...so how can they claim that Yahoo "is fully aware of the illegal activity and has the resources and technological means to prevent it."
How could they possibly be aware ? They don't even check whether the seller has a real product to sell let alone whether said product is real or counterfeit ?
Sorry I don't understand this class action...are they really saying Yahoo should have physically inspected every product for sale on their site and by not doing so they are therefore allowing piracy it seems a pretty lame excuse for a class action.
It seems to me that you can't expect Yahoo! to monitor -all- auctions - I'm not sure on this, but I don't think that the auctions are moderated in any way, so the only way to ferret out warez and the like would have to be to go through each auction seperately. Not to mention the fact that, if you read the auction, it specifies that you should only buy it if you currently own the game, and wish to buy a backup copy. Granted, that's a bunch of BS if you believe that the buyer actually has FFA, but it covers the auctioner's ass. Essentially, in that auction, what the person is selling is the service of making a CD-R backup of FFA, not a pirated copy of it. At least, that's what it appears to be on the surface... Side-question, if anyone knows - why can't I put a CR between the end of the post and my name? Please E-Mail me if you can help me - it looks like crap now. *grumble* -Teflon Eppy
"Nothing sticks to Teflon! Except those damned rockets..."
the original poster was talking about PHYSICALLY inspecting the items, which would be the only way to tell if it was illegal merchandise.
No, really, it's not. These auctions are obviously for copies of games. They say things like "backup version" and "you are bidding on a cd-r". So Yahoo could tell just from the description these are illegal items.
I mean, if someone had an auction for "One Hundred Pounds of Bolivian Heroin" would you expect Yahoo to PHYSICALLY inspect the heroin to make sure it was real, before ending the auction?
Josh Sisk
I'm calling the W.A.V.E. on you. You sound depressed and immoral.
--
Do daemons dream of electric sleep()?
If a guy at a flea market sells something illegal, is the owner / operator of the flea market responsible? This is an honest question (I don't know the legal issue) but it seems to me that if the cops were to bust anyone, it would be the individual selling the merchandise. Can you imaging the FBI shutting down the entire market (a large percentage of which is perfectly legal stuff) and arresting the owner of the market?
The real reason Nintendo and Sega are suing Yahoo is because they can't get their hands on the actual criminals. Tough luck for them! Too bad technology has gotten to the point where officers can't bust in on a physical location and catch all of these dastardly criminals red-handed. Looks like law enforcement has got some catching up to do. And personally, I'd put my money on the pimple-faced kid selling the games.
So eBay is definately watching everything that is posted. Why would they do this unless their lawyers informed them they had to by law? So the general consus of eBay's lawyers must be that if you profit from the sale of illegal items, then you're a crook. Maybe Yahoo needs some new lawyers.
Hurqalya
And here I was looking on usenet for illegal copies. What a waste of time. Thanks, Yahoo!
A precedent for it has already been set; L. Ron Hubbard (a.k.a. Phattman) of Dianetics/Scientology fame avoided all sorts of legal issues for a long time by never coming ashore. It's quite possible that INTERPOL or other international LEOs have come up with a strategy for dealing with that sort of chicanery. Based on how much of a nuisance he was, sailing around in plain sight but effectively untouchable, I'd expect so..
---
Searching for Truth, Justice, and the guy who booted my wallet a few years back.
Searching for Truth, Justice, and the Guy Who Boosted My Wallet a Few Weeks Back....
>Do we think auction sites should be liable for
>their content? Is this like ISPs being liable for
>what users download or read?
There is a difference, legally. An ISP can no more be held accountable for software piracy than the post office can be held accountable for mail fraud, they just pass on data packets, regardless of their content, using what limited (in comparison to the volume of "traffic" they handle) resources in co-operation with law enforcement to deal with the offenses that are so flagrant they can't help but notice them.
On the other hand, Yahoo! is acting as an agent in specific transactions on their auction site, regardless of whether a human being is monitoring each individual one or not, therefore if stolen property is traded through them, they are at the very least liable as accomplices.
As for the point on another thread where someone mentioned that the wording in a sale might imply that what was being sold was a backup service, IIRC most licenses and related law in this area states that the license holder can make their OWN backup copy, but does not make any mention of making backup copies for other people who are also lisence holders.
--
Searching for truth, Justice, and the guy who booted my wallet a few years back...
Searching for Truth, Justice, and the Guy Who Boosted My Wallet a Few Weeks Back....
some sort of jewlery maybe?
-Blunder
The copyright infringer is another large company. Who am I supposed to be pulling for here? :P
Are the owners of a flea market (an open market where anyone can show up and set up a table to sell whatever they want for a small fee, or even for free) responsible for making sure all items being sold are legal? Anyone know? An online auction should logically be governed by the same set of laws. Whether it is or not probably has yet to be determined.
What, you`re telling me that if you posted a message selling drugs (or whatever) on a Republican party/Big Company site chat room/message board, then they`d be responsible?
That was one of the aspects of the CDA: if you excersize editorial control over what people are posting, then you are responsible for what people post there, and do bear some liability if someone does, in fact, try to sell drugs from one of your discussion forums. On the other hand, if you excersize no editorial control (a la' slashdot), you cannot be held accountable for what others say and do.
Of course, running a discussion forum is arguably different from running a flea market or auction site, so the argument may not hold anyway. If I were the defense I'd argue the auction site is simply a discussion forum with a couple of fancy features (like storing bids and offers). If I were the prosecution, I'd compare it to a bar, which cities do close down if illegal activity is going on. On the other hand, yanking a liquor license is a coercive activity, not a penalty for criminal wrongdoing resulting from a judgement, so the prosecution could lose on that argument as well.
Either way, it is by no means a slam dunk against Yahoo. Perhaps quite the opposite, in fact...
The Future of Human Evolution: Autonomy
One word Shrinkwrap.
Baker's Law: Misery no longer loves company. Nowadays it insists on it
http://www.sigsegv.cx/
Ok, so I'm a bit rusty since I studied this stuff, and goofed a bit. The pertinent language states that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information provider". (47 U.S.C. 230) This, of course, has the effect of providing ISPs with relative immunity from liabel suits. And it has been used many times in this context, far more than just the Zeran case.
Nonetheless, the area where I was wrong (the degree of specificity to liabel) has little bearing on this matter. Yahoo is not merely a carrier of information in this context (thus 47 U.S.C. 230 should not apply). They recieve a direct financial benefit (e.g., they profit from every additional sale of pirated goods) from the infringing conduct (their role may infact exceed that). And further, they have the right and the ability to stop that conduct. This is sufficient for the test of vicarious liability. Although it is not even necessary to prove that the party had knowledge (though if that party can prove they had no knowledge, they may be excused), it can be proven by the plaintiff that they did have knowledge.
The bottom line: The CDA most likely won't stand up here (if they even decide to try to use it). Although I can not tell you exactly how the rest will turn out, Yahoo is not exactly in the clear here.
Yahoo's auction thingie is just a tool, and it's clearly not solely intended for illegal use. It seems to me that the gaming companies should have just as much a case against the pirates' ISPs, all the routers in between the ISPs and Yahoo, and all the routers in between Yahoo and the pirates' customers. They should also sue 3Com for selling modems or ethernet cards to the pirates without taking any steps to prevent them from being used for illegal purposes. And what if the pirates and their customers use a web browser to interact with Yahoo? Why haven't they sued the web browser authors? Have the web browser guys have put code in their web browsers to prevent people from using the browsers for illegal purposes?
This is, of course, absurd.
The criminals here are the pirates, and anyone who knowingly buys pirated merchandise. Not the tools and services that the criminals. If I rob a bank, you don't sue Honda, Texaco, Jiffy Lube and the owner of the road (the government) for assisting me in the getaway. You don't sue Walmart for selling me the duffel bag that I stuffed the cash into.
---
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Don't believe everything you read.
TOS are an attempt to push liability as far away as possible. It's just like the things you get that say "this supersedes all other warranties, express or implicit". Actually, it *DOESN'T*. If the law says you get a certain minimal guarantee, you always get it, no matter what anyone says, no matter what you signed.
Imagine that you hire a hit man, and he requires you to sign a document saying he disclaims all liability or responsibility, and acknowledging that his actions are solely your responsibility. Do you think this will get him off the hook?
You can't assume that, just because something was written, it's legally effective.
My blog: http://www.seebs.net/log/ --- My iPhone/iPad app: http://www.seebs.net/seebsfrac/
Just because Yahoo isn't monitoring it doesn't mean they're not liable. That's why I talked about what happens when you actually TELL Yahoo what's going on, and they still don't do anything about it. For example, if I tell you that there's a guy selling cocaine on your front lawn, and you don't do anything about it, then you're an accomplice. (Especially if I turn around and call the police.)
What's your damage, Heather?
Today, Yahoo has $billions at their disposal that BBS operators of the 80's would never have dreamed of, and they certainly make sure that every Geocities web page displays their ad banners. Is it too much to expect them to exercise a reasonable amount of care to prevent obvious illegal activity?
The reason Yahoo can profit from this is because of their business plan. Like most web companies out there, a large part of their income comes from banner ads, thus when people are browsing the illegal auctions yahoo is racking up the banner ad views and consequently making money off of it.
I got this nice little device called a v64jr to allow me to write code for the N64 (I intended to port linux to it but it hasn't happened yet). It can also be used to pirate games. Nintendo recently sued Bung and won.
Bung has officially stopped selling these things because of a lawsuit and there web site looks like its been hit with an injunction.
The solution to this legal crap is for those of us who bought the v64jr to develop code should sue Nintendo in our own class action suit. These big companies lawyers are good at being offensive against the little guy but are clueless about going on the defensive side agasint lots of little guys. The result is the company legal team gets in arguments with the hotshot hired guns and the results that I've personally seen are entertaining.
For details about coding for the N64 see Dextrose.com assuming it comes back up.
Could some one please explain? Are they sueing Yahoo! for some direct sales action (done by Yahoo!) or are they suing Yahoo! for linking to someone else who are selling the products in question?
-- From Denmark
This article defines trivial, who cares if one business has a gripe with another. The solution doesn't lie with your typical content monitoring vs. liability bullshit that slashdotters love to sling.
The problem is where is our free unmonitored auction website so we can sell what we damn well please without yahoo or ebay dipping its greedy little fingers into our profits? Some brave soul should host this and let the official legal authorities decide whats illegal and what isn't, not by pulling ads but by gathering evidence and going after lawbreakers. But instead we see corporations abusing their powers of contract for profit and censorship (eBay) and expecting the good folks at yahoo to do the same.
What ever happened to personal responsibility and the law? Go after piraters not providers of public auctions. This legal action makes about as much sense as the waging the 'war' on drugs on lowbie street dealers while ignoring the source of incoming contraband.
In the end, we all know how ludicrous it is to try stop the copying of music/games as well as the sell of illegal drugs. Law enforcement knows this and doesn't go after every pennyante pirate, but big business thinks they should play net-cop and pulls bs like this every so often. Give it up, or come up with a algorithm that a 10-year old can't crack.
While I'm at it, where's the refund for the 'pirate' tax on the media I buy? We know they're making a profit.
I wonder whether these companies are doing this for the publicity (all P is good P and all that) in the wake of all the PSX2 publicity recently. Afterall, for copyright infingement, surely criminal procedures, involving some sort of law enforcement agency would be more appropriate than suing.
;)], and those sites carrying it, could well be playing right into their hands.
Doing it this way, gets them on all the news sites [Slashdot included, oddly
I'm not saying that Yahoo! are innocent in this, that really is for the courts to determine, what I am saying is that this is not the most appropriate means to pursue an issue like this.
--
Listening for the sound of the coming rain...
Do we think auction sites should be liable for their content? Is this like ISPs being liable for what users download or read? I don't think so. "Real" auction sites have sets of laws that they must follow (e.g. Sotheby's couldn't auction a stolen 1957 Jaguar, or a counterfeit Picasso as a real Picasso). This may seem an extreme example, but the idea behind it is the same. While the freedom of the internet is important, that shouldn't mean absolute lawlessnes, ESPECIALLY if a company resides in the US. Just because they are online does not nake them some higher entity that can do no evil. -Marc
No no no not my point at all, I simply meant that non-US companies can't be held to our laws in situation X. There is simply nothing we can do about a company selling bootleg items out of for in most cases, they may not have the same copyright/trademark laws. You seem to be implying that if a company doesn't reside in the US they should be less constrained to obey laws. Insert the word "our" in between obey and laws. -marc
This is often difficult to prove in the real world (hence the reason pawn brokers exist). However if they can prove that they have regularly informed Yahoo! of prirated material, and Yahoo! has still gone ahead and sold it, then Yahoo! has knowly profited from the sale of illegal goods.
Perhaps for the case of a pawn brokers, but in this situation E-mail records can show exactly what was sent to whom, and when it was sent. Look at the Microsoft case for an obvious example of this.
While the freedom of the internet is important, that shouldn't mean absolute lawlessnes, ESPECIALLY if a company resides in the US.
What does that mean? You seem to be implying that if a company doesn't reside in the US they should be less constrained to obey laws. Or conversely, that non-US companies are more likely to break the law than US companies. Are you being a bigot, or did you mean something else entirely?
It also says just after:
You agree to not use the Service to:
... upload, post, email or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party
I think it's justified in saying this covers posting pirated software.
Correct me if I'm wrong but, aren't there many precedents that have said that content providers such as Yahoo, AOL, whatever, CANNOT be held responsible for content posted to their website as long as they aren't monitoring for it and take a laissez faire hands off approach. The second they start monitoring their stuff for illegal/whatever they become liable for what they miss.
The game companies claim that Yahoo directly profits from the sale of bootleg games sold on their auctions. If that were the case, their role would be much more like a bookstore or a computer store than a neutral content carrier, and it would be reasonable to require that they police their auction boards.
However, I just looked through Yahoo's auction policies, and it seems that they do not charge any auctions fees nor get a cut from the transaction, so the game companies suing Yahoo are on much shakier ground. (Ebay on the other hand does get a cut from the transaction, so they do have to police their boards).
I have 67,000 copies of MS Windows 2000 for sale. They are a little gold-looking, but they work fine!!
Extracted from Yahoo! Auctions guidelines...
Ownership of Data
When participating in Yahoo! Auctions you may provide us with information about yourself and/or products and services listed. You grant Yahoo exclusive rights in all of this information, and all information derived or generated from it, in all existing or future media. These rights include but are not limited to the right to display your information anywhere on Yahoo's services and media properties, to search the information, and, consistent with our privacy policy, to repackage and resell it to anyone for any reason. As used in this paragraph, information includes but is not limited to data, text, photographs, drawings, sound recordings, feedback, and any other information or data displayed or presented in connection with your listings and bids on Yahoo.
Open a branch office in Taiwan
House their servers there
Publish that all auctions are subject to the laws of Taiwan
Better still - do it in Malta. They may need to build the telecom infrastructure from scratch, but an invasion and censorship from the mainland Chinese is less of a threat.
Stephen Hawking has written another book. It's about time as well.
Basically if I knowingly act as a broker for illegal, stolen or forged goods then I am breaking the law.
Nintendo of America Inc.'s general counsel, Richard Flamm, said in a press release today that his organization has advised Yahoo! "many times" of the easily identifiable counterfeit goods...
This is often difficult to prove in the real world (hence the reason pawn brokers exist). However if they can prove that they have regularly informed Yahoo! of prirated material, and Yahoo! has still gone ahead and sold it, then Yahoo! has knowly profited from the sale of illegal goods.
I don't like Yahoo!'s chances. Getting them to change there site or the way that they post goods for sale is a completly different question.
"Do you think we could wipe out world hunger forever if scientists figured out how to make AOL's Free CD's edible?"-
Actually, from what the article said, it seems like they alerted Yahoo to the sale of illegal and infringing items and Yahoo did nothing about them. The article implies this happened many times, not just once or twice.
The companies see how easy it is for eBay to stop these types of auctions and won't stand for Yahoo just ignoring them. And eBay does... A friend of mine was selling Rare CDs, still in the shrink wrap, with cd-rs of the same cds (so that you wouldn't have to open the shrink wrap) and they cancelled his auctions, even though he was selling the cd-r with the original cd. So eBay manages to keep on top of illegal auctions pretty well and the game companies expect Yahoo to the same.
There really is no confusion here- the companies are well within their rights to try and put a stop to this. I mean, I don't really think they care that much about the high school kids who copy each other's games (not to mention those sort of "pirates" are impossible to catch), but if you are copying someone else's work and selling it... That's just wrong.
josh sisk
On the other hand, there's probably a negligence issue at stake. (I'm too lazy to look up the code sections, sorry) If Yahoo was reasonably informed by other parties (In this case, NOA, at least) that illegal transactions were occurring in a space that Yahoo! provided, Yahoo! is (I think) required, even under common carrier status, to go shut it down. If they don't, it's a case of willful negligence, and I'm pretty sure they're liable for it. While some people have pointed out that Yahoo! doesn't claim to screen for content, and state that they're not responsible, the fact that Yahoo! provides the forum for auctions/trading means (I think) that if there's illegal activity, and they know about it, they're required to do something about it.
Hope this isn't too far from reality--lawyers?
(Just to wear my bias on my sleeve, I'm a game developer who has been in the biz for about 7 years now).
The meatspace analogy would exactly be the persons responsible for maintaining order in the space of the auction -- the city government, police, etc. You can be certain that if there were a public auction of illegal goods, and someone notified the cops of this but their response was "sorry, we're not responsible", heads would roll.
As someone who makes games for a living, I think that this is an important issue that has to be responded to. While there will always be outlets for pirates to traffic in their illegal goods, aiding and abetting such practices, especially under the guise of electronic freedom, is just encouraging amoral behavior.
One interesting, somewhat related anecdote from longer ago in the games industry: when Ultima Underworld came out for the PC, it had no copy protection. It sold reasonably well, especially for the time. However, it sold around (IIRC) about 1.3 times as many hint books as copies of the game! Somehow, I doubt people were just buying extra copies of the hintbook.
The fact is that we are at a point in the cycle of copying technology such that casual piracy is a big threat to the livelihood of the software developers. As a society, we have to do everything that we can to work against people just looking to steal others' work, lest we lower the quality of generated work overall.
-- Rob "Xemu" Fermier
But that's the whole point!!
Correct me if I'm wrong but, aren't there many precedents that have said that content providers such as Yahoo, AOL, whatever, CANNOT be held responsible for content posted to their website as long as they aren't monitoring for it and take a laissez faire hands off approach. The second they start monitoring their stuff for illegal/whatever they become liable for what they miss.
Wasn't there a case w.r.t. AOL in a similar manner? AOL couldn't censor unless they wanted to be held responsible for not censoring everything?...what was the deal there?
You can get a device that plugs into the cartridge port of an N64 and connects to the parallel port on your pc. You then use the pc to store rom images and send them to the N64 depending on the game you want to play. Easy copying as the images are small........
Troc
PS Not trying to promote piracy or anything, I just happen to know that :)
Troc's dubious podcast and blog: http://www.trocnet.net
i cant see it being too hard to flag messages that contain certain words (warez, backup, cdr etc) for manual inspection, provide a `complain about this item` option, etc...
Unfortunately, according to portions of the CDA which were not overturned by the supreme court AFAIK, once a content providor starts excersizing editorial control of any content, they become liable for all content on their site, regardless of whoever posted. By doing absolutely nothing, Yahoo may well have protected themselves legally, despite what this lawsuit purports. Certainly in terms of criminal law this appears to be the case.
Of course, the civil courts could go the other way, putting all ISPs and content providors in the ugly position of being vulnerable criminally if they do excersize editorial control, and being liable civilly if they do not. Given the vagaries of our so-called justice system, this kind of absurd result would not suprise me one bit.
The Future of Human Evolution: Autonomy
EA, I can understand why they might be pissed. Their items could be copied to CD-R, from PSX/PC format.
What about Nintendo, who put out stuff on cartridge?
Are we talking pirate cartridges here? Same for Sega, IIRC, Dreamcast games can be pirated, but it's gonna cost 10G for the hardware to do it, so it kind of puts off the casual pirate.
Is this about piracy, or are Nintendo/Sega getting heavy with people reselling their cartridges, as I seem to think they were threatening something similar in Japan.
Worse though, it how that would affect smaller companies that want to allow high levels of interactivity, but don't have the resources to police that activity. With a meatspace analogy, who would be Yahoo? Say if people liked to sell these game copies on street corners in a particular town, would Nintendo be suing the town?
As far as I'm concerned, this isn't Yahoo's responcibility. It would be different if they specifically catered to people selling illegal items.
Nintendo & others need to bite the bullet and attack the real culprits if they want something done about all the petty pirates. But that would drain their resources, so instead they try to drain Yahoo's resources.
It's actually rather sickening if you think about it.
I think the really interesting point here is what precedent this will set for online auctions?
:)
Assuming that Nintendo et al. win, it'll set a precedent such that online auctions are liable for everything they auction - not that that's a bad thing IMHO but it would require vetting of every item that's put up for auction in the future. Somewhat time consuming and a bit annoying in this digital age
It would als mean an end to exciting auctions such as body parts, Carol Vordeman etc......
Do we think auction sites should be liable for their content? Is this like ISPs being liable for what users download or read?
Troc
Troc's dubious podcast and blog: http://www.trocnet.net
and this only protects them from liability in libel cases. Although the bulk of the original CDA was struck down on Constitutional grounds, those parts remained. Expecting service providers to monitor speech would have a chilling effect on free speech, because it is an impossible demand, and would force ISPs to walk a very fine line. In other words, ISPs are essentially granted strong immunity from libel suits, so long as they don't play an active role in promoting or creating it. The issue with censoring comes into play, in that by doing any censoring they expose themselves to liability in that they're providing some assurances as to the information provided.
Contrast this with Yahoo being informed in a provable manner by the owner of the intellectual property that it is, in fact, pirated. They're entirely different. Nor do I think it is an unreasonable demand that Yahoo does some auditing of their auctions, there are precedents for this.
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Yahoo, are entirely responsible for all Content that you upload, post, email or otherwise transmit via the Service. Yahoo does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. ... Under no circumstances will Yahoo be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise transmitted via the Service.
Since they have this is in their terms of service, surely the person who posts the stuff that they are suing for are liable for it rather than Yahoo?
When Slashdot has a public forum which they make clear that they do not prohibit or censor anything, there is protection. In Yahoo!'s case, they appear to be involved in the transaction if they take a cut, like E-bay does. If memory serves, Yahoo!'s auction site is a free service, in which case, it may have common carrier status.
However, if they are notified of illegal activity, they may have an obligation to take it down. I think that the DMCA may include such provisions, but I am not certain. Much like an ISP has to take down a web site if they are notified of criminal activity, Yahoo! no doubt has to take down an auction when notified of criminal activity.
My question is, are they demanding that Yahoo! proactively intercept illegal commerce, or only that Yahoo! remove it when notified. Additionally, how to they know that it is illegal? I mean, "this is a cdr copy" implies that it is illegal, but "this is a legitamet copy" could be a lie and it could be an illegal copy. I wonder if this will include fraudulent sales masquerading as legal ones or merely the advertised illegal sales?
IANAL
.oO0Oo.
In the UK an auction is partly a clearing house for possibly stolen goods that third parties have acquired not knowing if they were stolen or not.
The auctioneer needs to publicly state that there will be an auction in a fixed place, at a fixed time.
It is then your responsibility, if you have had items stolen, to attend the auction to see if any of your goods are on sale. If there are you can have them back (not sure what the burden of proof is). If they are sold then the person buying them is secure in the knowledge that you cannot go to their house and say "hey that's mine - I'm having it back".
It's a system that dates back to long ago when I suppose everybody in the neighbourhood would attend and get their stolen turnip back.
In that case it's not a concern of the auction house if things are stolen.
However someone who duplicates CD's is breaking copyright not stealing. There are laws to prevent counterfeiting which auctioneering is not protected from.
One thing that does puzzle me though is why the game companies are involved at all. In the UK cases concerning counterfeiting are generally the handled by a joint operation between the police and the local trading standards office (a local govt. body). In this way the injured parties are abstracted from the process.
It is supposed that the purchaser is also a victim rather than a criminal. If I buy copied products I have been swindled out of my belief that I was buying an original. The buyer is expected to act with due dilligence (no Gucci suits for $30) but I'm not sure of the penalty for not being 'dilligent'.
That does leave me with one question though. When I go to Spain and buy my Game128 and put in my Gameboy it doesn't present me with any license agreement. The packaging looks professional and of the 128 games in the cartridge I have only seen the names of a couple of them before. Am I free to go ahead without fear of penalty believing it to be a legitimately licensed product?
There are places where the networks are not touching,and there are places where they are-Boeing's Lori Gunter
Surely not. The people sueing them never agreed to these terms. If the suit was by some buyers who had gotten ripped off, the ToS would matter. But a judge and/or jury is going to decide whether Yahoo has a responsibility to prevent trafficing in illegal goods over their site. They can't avoid the law by saying "oh but we said we weren't responsible, so we're not!"
To put it in other terms, if Bill Gates had included a little line in all his exclusivity and bundling contracts stating "this contract does not represent an attempt at a monopoly and is not meant to infringe on any third party's attempts at compitition" Do you think the DOJ would give a flying you know what with a rabid weasel?
Terms of service establish the relationship between the two or more parties that can read and agree to them. They mean diddly squat when an effected third party challenges the legality of one or more parties actions.
If anything, I would think that these ToS will work against Yahoo, since they seem to let buyers and sellers know that Yahoo won't be interfering with illegal sales, even if they have knowlege of them. Exactly what the plaintifs are charging.
IANAL, IMHO etc.
-Kahuna Burger
...will work for Chick tracts...
I used to be roommates with a guy who sold bootleg concert CD's for a living. Ebay has a few employees that proactively search for illegal items like bootlegs, and they're so effective that the guy could only put bootlegs up for auction on the weekend, when the staff wasn't working. When a staff member finds you selling bootlegs, they can (and do) cancel all of your current auctions - not just the one auction they found.
In addition, Ebay lets you e-mail these "policemen" and tell them about illegal items, and they'll take action.
Yahoo doesn't do any proactive checking whatsoever. You can inform Yahoo that auction #123 is an illegal bootleg CD, and they don't stop it. Most of the time, they don't even acknowledge you. They never penalize you, and they certainly never cancel your account - he's been using the same one since auctions.yahoo.com got started.
I can see why Yahoo is doing it - they're trying to capture market share in any way possible, and let's face it, if they offer cool stuff that Ebay won't allow, then people will get interested. If you browse through Yahoo's auctions, you can find pretty much any bootleg on the planet, and a decent selection of pirated software.
Yahoo is getting hit up by these guys because they (Yahoo) are totally irresponsible about the legality of what they're allowing their users to auction off. Somebody could probably put slaves up there and sell them. Come to think of it...
What's your damage, Heather?