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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."
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?