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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."
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.
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.
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.
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!
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 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.
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If they are not liable for bootleg music how come they are for bootleg software?
AdFuel
-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.
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.)
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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
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.
The big difference is that a traditional auction house doesn't just list merchandise, it actively sells it. That is, auction houses do their own promotion, printing up glossy catalogues of items for bid. They have PR departments who try to drum up interest in particular items or collections. They will appraise items to help set opening bids and to help the seller gauge the eventually hammer price. For works of art, they even investigate the history of the item to make sure it's what the seller claims it is. In short, a traditional auction house acts like an agent for the seller, and thus is implicated if the sale is illegal or improper.
(I should add, as a hedge, that to be an "agent" has very specific legal meaning, and I don't know that the law really treats auction houses as sellers' agents. All I'm saying is auction houses seem to act a lot like agents, and this justifies treating them one way.)
eBay, in contrast, doesn't get involved in the individual items it lists. The seller can list just about anything. The seller chooses how to present and describe the items. eBay doesn't vouch for anything. If memory serves, eBay does get involved in arranging payment, but even that is merely holding money in escrow, and has nothing to do with the item being sold.
If people at eBay know that someone is using their service for an illegal or improper purpose, they have certain responsibilities, and I'm under the impression that eBay tries to live up to them. But since they don't have the same relationship with the seller, and don't act the same with regard to individual sales, there is reason to treat eBay differently from an auction house.
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
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."