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Judge: eBay Not Liable For Bootleg Recordings
Millennium writes: "San Francisco Superior Court Judge Stuart Pollack has ruled that eBay is not liable for bootleg music sold on its site. The interesting thing about this ruling: Judge Pollack based his opinion on the CDA, of all things."
Okay...so I want to get a boot of a show, but I have nothing to trade. How do I get the boot?
:)
Do I buy a bootleg so I have something to offer?
What if someone who has a bootleg I want doesn't want anything I have?
That's what I love about Napster. I could care less that I can go get someones new album that I didn't care about anyway. What I like is that I can finally fill in all those missing pieces from various Rush bootlegs off Usenet.
BTW, since I pay for my usenet access, and am downloading bootlegs, is it good karma for the usenet provider to make money off me?
In what district is the Napster case being decided? In what district will this eBay case be appealed (cuz we know it will)?
East Coast, West Coast. Two different circuit courts, two completely different mindsets in the respective judiciaries.
Two rulings on very similar cases that contradict each other: that's one of the tickets for Supreme Court review.
Might this turn out to be a bad thing?
I'm surprised the MPAA/RIAA aren't lobbying for whomever-the-next-Prez-is to appoint corporate-friendly SCotUS Justices, to forever ban Napster, Gnutella, DeCSS, linking to whatever we feel like, etc.
Thus sprach DrQu+xum, SID=218745.
DrQu+xum: Proof that the lameness filter doesn't work.
In the eyes of the RIAA, if you like a song, you must pay for it
Wrong. In the eyes of the RIAA, if you like a song, you must buy the album.
I messed up the http://etree.org link in my last post.
Here it is again: http://etree.org.
The difference is that while on Napster yer trading copyrighted materials for free, over eBay you make a profit off it ;-)
I wonder how it got as far as it did. How would said fan even have standing to sue? Were these copies of bootlegs that he himself made?
just what the hell are you talking about??
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"It is now safe to switch off your computer."
no, but it is nice to see that someone with a *really* big cluestick finally got to a judge.
I wonder if it hurt...
"I don't need a compass to tell me which way the wind shines." - Mr. Furious, Mystery Men
My thoughts exactly... Maybe there's hope for Napster afterall
-The_Faceless-
[insert internet fencing site name here] is a service providing the means to distribute unauthorise recordings, made by individuals, but owned by bands.
The significance is in who made the recording.
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A feeling of having made the same mistake before: Deja Foobar
If I were the guy who taped a show being sold, I'd check out the bid history, collect emails, and then send an email to everyone who bid, plus the guy selling, along the lines of "This is a show I taped; rather than spending your money on it, if you'll send me blanks & postage, I'd be happy to spin it for you. And I'm going to do the same for any other shows I have in my posession that I happen to see being auctioned."
Of course, that might be against eBay policy (I doubt it -- he's not trying to undersell, he's trying to give away); but obviously Mr. Stoner doesn't think much of current eBay policy anyway.
"We're the hardest working band in the business, I don't care if we're the best" - Iggy Pop and the Stooges.
Hey, you think your house is cool?
Yeah, and deadheads report those stores to the Dead's lawyers, who show up with law enforcement officer, confiscate all their infringing merchandise, and open a can of legal whoop-ass on the store. There's "hippy stores" that no longer exist because they tried to leech off the Dead by selling bootlegs.
Why would Deadheads want to go out of their way to deliberately hurt record stores that sell bootlegs, and get bootlegs taken off the shelf and off of ebay?
Consider this statement from Grateful Dead Merchandising, released 01/2000:
The Grateful Dead and our managing organizations have long encouraged the purely non-commercial exchange of music taped at our concerts and those of our individual members. That a new medium of distribution has arisen - digital audio files being traded over the Internet - does not change our policy in this regard.
Our stipulations regarding digital distribution are merely extensions of those long-standing principles and they are as follow:
No commercial gain may be sought by websites offering digital files of our music, whether through advertising, exploiting databases compiled from their traffic, or any other means. All participants in such digital exchange acknowledge and respect the Copyrights of the performers, writers and publishers of the music.
This notice should be clearly posted on all sites engaged in this activity.
We reserve the ability to withdraw our sanction of non-commercial digital music should circumstances arise that compromise our ability to protect and steward the integrity of our work.
As well they should. The Dead have allowed audience taping and tape tradring as a courtesy to their fans, with the only condition being that the music be not sold for profit. Their fans respect this, and have little tolerance or respect for those who don't.
Having something shot by concert staff does not mean the result is going to be watchable. I have a bootleg Wall concert by Pink Floyd from 1980. The video quality is rather good despite it's age, and doesn't have the degraded quaility found in nth generation dubs. The problem is that you really can't see anything during some parts. Most of the stage is very dark, and I guess that video camera technology was limited back then. Most of the time, all you see are fuzzy blobs. And this was made professionally, as you can tell when the lights are bright enough.
Ebay is allowed to sell pirated music in order to relieve Ebay of the task of checking every single auction they host to make sure the
products are legitimate.
Ebay is not allowed to sell ANY MS Software, also in order to relieve Ebay of the task of checking every single auction they host to make sure the
products are legitimate.
What would happen when MS goes into the music business?
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Napster Client 2: What do you wish to bid for?
Consumer: Metallica Enter Sandman
Napster Client 2: What is your opening bid?
Consumer: zero cents
Napster Client 2: Going once, going twice, going three times. sold to user xxxx from user yyyy
Consumer recieves one Metallica enter sandman.
-- Cheer, Cheer, The Red and the White.
the only time GD tapes are illegal is when they're sold for profit. the band has ALWAYS encouraged fans to tape and trade/enjoy their shows. the quote was something like once we're done with it [the show], its theirs [the tape].
so trading is perfectly fine as long as there is NOT a profit incentive. but outright selling is definitely forbidden.
so the notion here is: its NOT the way you got the music or the fact that there are live tapes in circulation; its whether you're trading for fun or for profit that's the rub.
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"It is now safe to switch off your computer."
Perhaps you should read the WHOLE article instead of just the first paragraph.
The litigation did not focus on copyright infringement, as has the Napster case. And it goes on to say In dismissing the suit, Pollak said he based his ruling on the Communications Decency Act, which forbids computer service providers for being punished for the speech of others.
Of course... i still disagree with the moderator... but... that's not what these posts are for. If you want to bitch about that... e-mail cmdrtaco or whoever it says to in the FAQ
Ok, a lot of people are making comments about how it's ok to sell bootleg music, or bootleg software with this decision. It's not. In fact there is now more of a danger to the end seller than previously. When eBay was responsible, they were the ones who the businesses would sue (they've got the deep pockets) but if they suddenly can't sue eBay anymore, expect them to start suing the end sellers and buyers. This could get very ugly.
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RumorsDaily
Seeing as the band the article is talking about is the Dead, I have a feeling the author screwed that up slightly -- it should probably read: ...who sought to stop illegal sales of concert recordings of the band.
No taper I've ever met has worried about "illegally" recording a band that allows taping at their shows. However, many of the tapers I know get downright pissed when someone sells live recordings -- their reasoning being, the band should be profiting off the music (sound familiar?) and not the fan; trading is fine, but if the band sees people selling live recordings (not "bootlegs" -- these aren't unauthorized) they might decide that no one's allowed to legally tape at their shows anymore, and then the people who do it for the music are SOL.
Personally, I'd never buy a live recording -- chances are, any show I'd be interested in getting (which probably wouldn't include any Dead shows, frankly) would be available for free by trading with someone who had better equipment at the show in question, anyway.
from the article:
The litigation did not focus on copyright infringement, as has the Napster case. In that suit, the recording industry is suing the song-swapping service in federal court for allegedly contributing to copyright infringement by allowing millions of people to download copyright music over the Internet for free.
It's not a question of copyright, it's a question of selling counterfit goods. It's like shutting down those guys on the street in New York selling the gucchi purses.
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RumorsDaily
It would seem to me the difference comes in the form of money. Ebay is actually making some money off of these bootlegs. IANAL but in my mind that would make this situation much worse. In other words, if Ebay can lawfully make money off of bootlegs than certainly Napster should be able to freely enable the exchange of songs.
I bet that the ruling would have been very different if the case had been brought forward by the RIAA, MPAA or one of the mega studios directly.
Here eBay is the establishment, versus a deadhead that is seen as trying to limit the profits of business. It doesn't take much cynicism to know in advance who would be coming out on top.
Judges almost never rule against the establishment. There are very few mavericks who don't care how their peers on the bar feel. It would be career-limiting.
However, there could be a useful lesson to learn from this. If grey areas ripe for suits could be anticipated and suits filed in advance by a faction seen as anti-establishment, then the failure of the action would set a precedent which would then deny success to parties like the RIAA on the same topic. Precedents are very powerful weapons in law.
"The question of whether machines can think is no more interesting than [] whether submarines can swim" - Dijkstra
You know, this Stoner dude might be a sly manipulative genius.
Assume he's a big Napster / music sharing fan, and wants to help Napster out. All he has to do is bring up a 'novelty' lawsuit against ANOTHER online service. This will gets resolved sensibly, and he appears to have lost...
However, the Napster lawyers NOW have a legal precedent to take to court with them that basically covers (from a non technical P.O.V. of course) the same thing they do but all legal like. Nice one, Randall!
The Plantiff's name is Stoner. Only A greatful dead fan of this caliper would consider trying to sue for something he had no rights to. Where has all the common sense gone? -peel
Shouldn't someone explain to this fan that the grateful dead doesn't tour anymore? That they've been more or less disbanded since Garcia died? There are no more concerts for this fan to tape.
Lee Reynolds
Muslim community leaders warn of backlash from tomorrow morning's terrorist attack.
are always considered "flame-bait" or "trolls" -- sure, they are worded to evoke some sort of response -- but what message isn't? just because a message seems to hold a different viewpoint than your own, or the (slashdot) mainstream, doesn't mean it's flamebait -- talking about the end victim in all of this seems to me completely relevant. to have every message be simply informative and non-opinionated is unrealistic and, yep, quite boring. fishfucekr.
I'm sure that argument can be flushed down the toilet, once they go through all those internal emails... Given the microsoft case, and shawn fannings reasons for starting napster, unless they've gone through and erased all their backups, something interesting is sure to be waiting to be found in there.
I agree, and I disagree... First off, I agree that one of the major reasons the Ebay got off so easily is because it is a big business... And that one of the reasons that napster is getting reemed a new one is because it is smaller, with a sort of rebelous feel to it. But..... The sole purpose of napster is to bootleg music (but it should be free anyways, why the heck should we pay suits money... but that's a whole other argument there) and with ebay, 90% or more (i have no idea what the actual number is) is legitametely resold, and even a decent amount of new items. With very few illegal items, but I agree that the basic principal of both is the same, and that it shouldn't make a difference... But that's america for ya, whoever's got the money, has the voice...
I'm not saying that god doesn't exist, merely that he is not necessary - hawking
You only see a difference because in each case you're reading the ruling from the point of view of the party bringing the suit. That doesn't reflect how things work at all.
Judges almost never rule anti-establishment (it's career-limiting), and in this regard the ruling was identical to that in the Napster affair in which big business won out over the small guy. The item in dispute is irrelevant --- lawyers can produce an argument supporting either view with equal ease. All that matters is which side big business is on.
Here eBay is big business, so the deadhead was told to take a flying jump. Are you surprised?
In both cases, the law acted identically.
"The question of whether machines can think is no more interesting than [] whether submarines can swim" - Dijkstra
I think the difference is that Napster is specialized where as Ebay is not. If napster had deals with most of the artists involved okaying their distribution of their music, then the law would not have come down on them nearly as hard if it was found that only 5% of the music available through their service was in violation of copyright.
Likewise, if eBay wasn't eBay, but eBootlegs.com, theye'd probably be in very hot water from the get-go, since they'ed be more directly encouraging such sales, rather than their more passive nature of just selling what people want to sell and not giving anything high priority.
...actually encouraged bootlegging of their gigs!
I can use one networked listing service to sell shady items, but I can't use another networked listing service to sell shady items?
In what district is the Napster case being decided? In what district will this eBay case be appealed (cuz we know it will)?
Two rulings on very similar cases that contradict each other: that's one of the tickets for Supreme Court review.
[
All in all, this looks like an important ruling concerning any service hosting "trading" activities for it's users.
If they are not liable for bootleg music how come they are for bootleg software?
AdFuel
If eBay is in the clear, what happened with napster?
We are trying to hold eBay responsible for its auctioning conduct...
How is Napster different then an auction service that is only based on how much you like a song, not how much you want to pay for it? Why can't the courts make up their mind?
Need ecommerce that doesn't suck? FoxyCart is for you.
Kidding, of course, but we could use someone who has a handle on issues like this.
A 'fan' of the Grateful Dead? How does he have any legal standing to bring a lawsuit against someone selling (assuming they are for the sake of argument) illegal copies of music by the Grateful Dead? He's not a copyright holder of the songs, the recordings, anything. The case should have been rejected outright since he's not an interested party in any legal sense.
This is one of the few cases where I actually agree with a judge on a technical issue. Of course this won't make the big stories that going against Napster did, but it is nice to see technology winning a few battles. I am not encouraging sale of illegal goods on ebay but I am encouraging to have to monitor every item and check the legality of it. If that were the case they would be shut down as would almost all public auction sites. Anytime you allow the public to use a resource there will be some that try to use it improperly or illegally. Good luck in the appeal ebay.
I am 31337 or something.
all this means is that eBay is not liable for someone distrubuting 'illegal' music over their auctions, but the recording companies can still go after the seller. Guess that eBay is going to be hit with a lot of subpeonas concerning member information based on 'illegal' cd sales.
Eric Gearman
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Atomic batteries to power! Turbines to speed!
-How is this different from Napster
Lets see, Napster, load it up and it scans your hard drive for MP3's and shares them for the public to download, and it searches for only mp3's
Ebay, for example, puts no restrictions on what you sell or buy.
Personally I think this is a step in the right direction. How can companies be held responsible for the misuse of their products. Getting rid of naptster is not a solution, we will just go back to ftp or Gnutella or P2P.
If we start restricting what can and cant be sold over an independant enitity like ebay then full throttle net restrictions would start to take effect and the internet would lose what makes it so great.
That's what this is trying to convey. WalMart hasn't been found criminally responsible because they sell hunting bows, shotguns, rifles, and the like. However, they have been sued over such things.
"Ancillary does not mean you get to rule the world." --U.S. Circuit Judge Harry Edwards, speaking to the FCC's lawyer
Why do the traditional laws for auction houses suddently not apply to eBay? Its core business is the auctioning of materials from person to person, and as such should be subject to the same kind of scrutiny as any other auction house.
/., but that's not what I believe this case is about. It's not about the fact that this particular case involves bootleg recordings. As far as any auction house is concerned, it is merely another item to be sold.
I know people will think this flies in the face of the whole "Information wants to be free" argument prevalent on
The only way I could think of that eBay is exempt from traditional laws is that they never have the actual objects in their possession , but IANAL, so feel free to correct me.
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You rush a Miracle Man, you get rotten miracles - Miracle Max, TPB
DMCA may actually save Napster just as CDA did here. There's a provision that grants amnesty to service providers given that they don't knowingly allow illegal use of their service.
In the Patel suit, internal Napster memos were entered into evidence that showed pretty clearly that Napster's founders were complicitous to illegal infringements.
That would cancel the above defense. It's up to the other defenses: Patel's ignoring precedent case law (Betamax, et al.)
[
In Itally, bootlegging concerts onto CDs is legal provided that you open a bank account to which the original artists have access to and that you deposit a nominal fee plus a certain (minimalist, but still) percentage of the sales of your bootleg disk.
/. reader from Itally could come up with them. Anyone?
I have one such CD (a Nine Inch Nail concert) which was legally bought here in Canada in a HMV store.
I don't have the numbers, but I'm sure some
Karma karma karma karma karmeleon: it comes and goes, it comes and goes.
Ebay still can't sell bootlegs if the copyright holder objects, all that this case does is relieve Ebay of the task of checking every single auction they host to make sure the products are legitimate. Did anyone (other than the plaintiff) really think they were obliged to do this?
A pizza of radius z and thickness a has a volume of pi z z a
If eBay isn't held liable for the music warez being piped through it's site, how can Napster et. al. be held under different responsibilities?
It seems to me that since the music still gets from point A to point B, and the site/service is acting as a medium between the users at sites A and B, that the site/service must be considered doing the same thing no matter how they go about doing it. Therefor eBay is getting away with what Napster isn't, a double-standard that even the Man should be able to see...
Am I flawed in this logic???
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Everything you've just read was poetry and art - no infringement!
(Discordia)
"We are not always what we seem, and hardly ever what we dream."
Schmendrick the Magician
First of all, anyone who is a bootlegging fan knows that people who sell bootlegs are evil. With that said here are what I think are the fundamental difference between the two... When you get your hands on a bootleg, generally you would have had to trade to get it (or buy it if you suck like that) and most people wouldn't go to the trouble if they weren't big fans. Heck there are a lot of artists who don't mind if you record their show, you just have to get permission (the hard part). Now, bootlegs are recorded at concerts and the artist has already made all the revenue they're going to get out of doing that concert, so if someone bootlegs that concert the band isn't loosing any money. For those people who just couldn't make it to the concert, bootlegs are wonderful (I missed the community service tour but got the bootlegs). In the case of Napster, however, the possibility exists that you could have tons of music that you don't or didn't previously own therefore creating a loss FOR THE RECORD LABELS, artists don't generally lose out on lost sales unless theyre collecting royalties. Remember, the people bootlegging usually have good intentions, it's who's hands it falls in and the dick who tries to sell them. Sometimes there's nothing more you can do than to buy one every now and then, one you have to have but couldn't obtain... you happen to find one on eBay, what are you going to do? These people can't be guilty of anything, all they want is some music, they're not cutting into anyones pocketbooks, is it really all that big of a deal? The RIAA is scaring and threatening the one hand that feeds it, pretty soon consumers and artists are going to get fed up and find a way to bypass record labes in the music production process altogether (some already have) they better watch themselves.
uhhhh... We The People... as in We The People of the United States... as in the US Constitution... I realize you're not American so I'm not gonna call you stupid or anything.. =D
If the RIAA refuses to publish an artist's work (or even better, numerous artists' work), they will promote what they fear: a second distribution system. One in which they have explicitly relinquished any stake in the recordings that they might otherwise have. 'Course I wouldn't mind seeing them shoot their own foot.
Is this a joke? The CDA was struck down as unconstitutional ages ago.
--jbSince when was a mechinism that allows a crime to take place not a crime itself. This is very new for the computing world and I would liek to see how it fans out.
O P E N___S O U R C E___H U M O R
great comedy company.
The CDA says that ISPs cannot be responsible for how their users use their service. This judge says ebay falls under the same rules. Napster is also just offering a service...and they shouldn't be held responsible for their users actions...no matter how illegal. Same sort of thing as if I got in trouble for writing threatening emails. My ISP shouldn't be held responsible.
Hopefully this can act as a precedent for online services.
...is that the Dead allowed people to record whatever they wanted at their concerts.
Usually, a special area was set up specifically for this purpose.
Now, most of these dupes were traded rather than sold, but still...
I like you, Stuart. You're not like everyone else, here, at Slashdot.
We The People it's the first three words from/of the American Declaration of Independence
I'm glad to know that if they ever contact me again, I have a legitimate legal precedent to tell them to go to hell.
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seumas.com
Obviosly, it's "We The People..." The script used is just slightly ambiguous.
errr that's When in the course.. the US Constitution
I swear this is a huge potential market, by ignoring it, encourages bootleggings. I'm not really excited at the prospect of buying a video tape of a Rush concert shot on someone's Sony hand-held video camera, if I could choose something that was shot and recorded by the concert staff. I'd think these would also be popular with people who didn't attend that particular concert, but would like to see it on their home set. Any argument that this would decrease concert attendance is preposterous and knee-jerk. I could see fans of the Dead, had this been recorded and available on VHS or DVD, buying one from each concert stop.
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A feeling of having made the same mistake before: Deja Foobar
That's definitly embarrassing!
I didn't mean to offend anyone! But i haven't seen the actual document before (I'm from germany).
For more information on a great organization that's involved in trading live, losless concert recordings, check out etree.org.
/. posts could possibly provide.
The GratefulDead, as well as other bands, explicity allow the taping and trading of their live music. They only forbid the sale of said recordings.
Follow the link above, and you'll get more information on this topic than thousands of
Randall *Stoner*?
;)
Well, they say there's a truth to every stereotype
anyone want a copy? somehow, using a tube preamp section seems to have fixed many of their BSOD's. weird, eh?
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"It is now safe to switch off your computer."