Slashdot Mirror
eBay Beats DMCA
pgrote writes "eBay won a court battle that brought to light a key provision of the DCMA. The judge says, "Although it may facilitate the sale of pirated material, "eBay does not have the right and ability to control such activity," a standard required by the Digital Millennium Copyright Act, the judge wrote." So does that mean that the P2P file trading programs are legal since the pirating occurs off the sites? This is could be a very important precedent. " In talking to some lawyer friends, their perspective on part of the Napster case was that by being very difficult in the beginning, Napster almost doomed itself. But, as always, IANAL ? .
I spent a year in Iraq looking for WMD and all I found was this lousy sig.
EBay asked Hendrickson to submit a sworn, written statement detailing his claim through its Verified Rights Owner Program, which lets copyright holders request that eBay remove an infringing item. Hendrickson refused, saying his general complaints should have been good enough.
I love that part. EBay suggested he go through their standard procedure for filing copyright complaints, which (I believe) has worked for others in the past. He refused, snobbily. He brought a legal case, and he lost.
Good for him. If he'd done things the acceptable way instead of trying to let lawyers solve his problem, he'd probably have the problem solved already. America needs more lessons like this.
Think about it: If I provide you with a hammer with the purpose of you using it as a device to pound nails into wood, etc., I really don't expect to be sued if you use it to bash in a guy's head down the street. eBay wasn't created to facilitate the transfer of illegal copies of materials, though some might use it for such.
The question the courts should be asking is: did the system - let's say Napster - purposfully come about to circumvent legal aquisition of music? If I sold you the hammer with the purpose of selling you an offensive weapon, I should expect to be a party to the demise of the former human on the sidewalk.
So, Legal Eagles, were Napster, Gnutella, etc. created as P2P systems that were "turned evil," or were they "evil" from the get-go? Therein lies the answer, I think.
However, more importantly is that the judge threw out this case. There is no precident set by it, no question of the constitutionality raised, and only means that other judges can use it for deciding similar cases but cannot outright use this decision to finalize those cases.
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
Making unauthorised copies of a copyrighted work is illegal. That's fair do's, and a deal that I accept as right. However, it has become difficult to enforce.
It's almost impossible to catch and prosecute people who make copies of CDs for their friends, and other such illegal acts.
As a result, lawmakers and "content" providers fall over themselves making up daft laws and policies in order to combat the problem.
Instead of targetting eBay, and firing the DMCA at them (which is itself a circumvention device - it enables the law to circumvent going after the REAL criminals, and instead sends them after those who attempt to enrich society) would it not make more sense to hang around eBay for a while, bid on unauthorised material (I REFUSE to use the word Pirated), offer to pay by cheque, and then send the heavy mob round to the address, thus catching the real criminal?
Surely if such tactics could be used instead of lazily hiding behind the DMCA we wouldn't need such daft laws in the first place, and the REAL criminals would be in jail, instead of an innocent Russian hacker.
The months are just too short. I can count the number of days on one hand.
at the first beam of sunlight.
I really love this:
Digital Millennium Copyright Act, a 1998 law meant to stimulate Internet commerce while protecting copyrights.
Then in the next paragraph:
But the other cases, such as the criminal prosecution of Russian programmer Dmitry Sklyarov, are based on provisions in the law that ban technologies that let people circumvent copyright protections.
Now if you look at that again, you realize that Dmitry's company was the one engaging in "Internet commerce", but he's the one that got hammered.
This, to me, seems to be decent reporting, but there is a bit of "slight of hand going on".
If the DMCA was meant for commerce, why it it being applied to crypto, reverse engineering, education, etc.
And I like this:
EBay asked Hendrickson to submit a sworn, written statement Hendrickson refused, saying his general complaints should have been good enough.
BWAHAHAHAHAHAHA.
Two Words: Prove it! (or in lawyer speak "burden of proof lies of^H^H with the accuser".
What gets me is that corporations are the one's fighting the battles of copyright holders, instead of the copyright holders themselves.
(but, hey, the corps own the copyright holders, so same-same, i 'spose).
I think if a corp holds the rights of an individuals IP/Copyright, then the individual should be the one doing the persecu^H^H^H^H^H prosecuting, not the corp. Mano e mano.
Just some interesting things to ponder.
Moose.
SIG, SIG out loud, SIG, SIG it proud
Have you read the moderator guidelines? Well, have you, PUNK? (and I want a Karma: Gnarly option)
While this victory by eBay is an important one, only time will tell why. Hopefully, it will help copyright law and enforcement get back to a more reasonable path. But, it could have the opposite effect. The MPAA and RIAA may donate some money to some influential congressmen (read: bribe) and add some more quasi-constitutional teeth to the monster known as the DMCA (God that sounds corny).
Just waking up and still a bit cranky,
-- If any of the above made sense, I assure it was purely by accident.
eBay won because they were big, established, and profitable. They also had clear non-infringing uses of their service established.
Napster was percieved as an upstart pirate of a company, and that's why they lost.
I don't think it has a great deal to do with the letter of the law here, but how the companies were percieved by the respective judges.
Need a Python, C++, Unix, Linux develop
(standard disclaimer, IANAL, etc).
What all of these cases seem to come down to is *intent*. These are IMO, but consider:
2600's intent was to play DVD's on linux and, possibly, allow for unrestricted viewing/skipping commercials, re-establish fair use.
(the fact the judge of the case was in the employ of the MPAA *was* a conflict of interest, despite the judge saying it was not.)
Dmitry's (and his company, I think) was the same...the intent was fair use, letting blind people have access to ebooks, restoring ones rights should the computer mess up (god knows that *never* happens) and allowing the same rights printed media has
over electronic media...you have no rights to something you PAID for...excuse me?
Felten's purpose was academic research, that was stifeld because of the DMCA.
The intent was to teach his students (and others). The *intent* was education...hell, you can teach someone chemistry, from there they could make medicine, bombs, nerve gas.
Whoever coined the phrase Digital Crowbar was correct...but it is the DMCA that is the crowbar, I'm afraid. (Digital Millineum Crowbar Assault?)
People who don't see that are missing the point entirely.
The Digital Crowbar referrence was to DeCSS, but this is incorrect, it is being used to bludgeon to death the rights of the consumer, the educator, the hacker the innovator or even the curious, and yes, even the business and individual.
Moose.
The problem with being esoteric is not that people are "beneath you" it is that your *thinking/reasoning* is so far above everyone else's. (think about it)
Have you read the moderator guidelines? Well, have you, PUNK? (and I want a Karma: Gnarly option)
"The judge agreed with eBay's position that it is not like a real-world auctioneer that vouches for the items on sale, but rather more like a provider of the stalls at a flea market."
how is it that the digital "flea market" owner isn't libal for renting a stall to person selling pirated material, but 2600 magazine is libal for linking to site that provides DeCSS code fragments? another example of the double standard that will bring the DMCA crashing down eventually.
"Consistency is the hobgoblin of small minds" - RWE
Maybe it's just your wording here, but if this is the case, I'd be very scared... you shouldn't have to prove that you're "not guilty", they should have to prove that you ARE guilty.
Perhaps it is sloppy wording on my part. The most relevant section (512(f)) makes no reference to burden of proof, so I would assume that standard principles still apply. Again IANAL, but it would seem to me that if you contest their claim of infringement then the burden lies with the accuser. However to recieve full punitive damages (above and beyond monetary losses and court costs), requires the accuser "knowingly materially misrepresents", which might require you to prove something about the accuser. I'm not sure.
In any case I am pretty sure that typical rules regarding court evidence and proof still apply. Sorry for any confusion.