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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 ? .
This probably wouldn't have any effect on P2P programs themselves, as the courts would have to decide whether the intent of such software was to deliberately facilitate copyright infringement, but this could take the heat off of ISPs and give them more leeway when they are told by someone (like, say, the MPAA) that a user is sending pirated software through their service. Remember the salon.com story about a person accused of copyright infringement on USENET whose access was immedeately suspended while they were on vacation, no investigation necessary? ISPs may now have more freedom to say 'prove it' when the MPAA, RIAA or another such organization comes knocking.
STOP MISUSING APOSTROPHES, YOU MORONS!!!
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.
Does this mean they can start allowing import games to be sold? I've bid on a number of Japanese import Dreamcast and Saturn games, where the auction has subsequently been pulled. Turns out that Sega demanded that eBay pull any such auctions, suggesting that they "promote piracy", although afaik there is no law prohibiting the resale of import games.
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.
You must be reading a different article, because the one linked to talks about a "ruling". The "dismissal" mentioned is a sloppy non-legal refernece to the request for damages, not of the case itself.
Hint to moderators: read the referenecs before moderating comments "insightful" or "informative".
If you were blocking sigs, you wouldn't have to read this.
Utter twaddle. Read the article. The reason for the loss was that it was an ill advised suit. The complainant refused to comply with eBay's take-down procedure, launched straight into an arrogant lawsuit, and got (rightly) reamed for it.
If you were blocking sigs, you wouldn't have to read this.
I say we put the DMCA up for auction on E-Bay as a "revenue protecting licence agreement text suitable for governments funded by large buisnesses". How much do you think it would go for?
The next site to slashdot will be ready soon, but subscribers can beat the rush and start slashdotting it early!
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.
Untrue, Patel knew precisely what Napster was about, it had no real purpose other than copyright infringement and its creators had no intention of discouraging piracy. No amount of /. sophistry changes that.
eBay on the other hand has a real purpose that does not depend on infringing others copyrights and had established a takedown proceedure that was clearly in good faith.
The ratio of infringing content to non-infringing on Napster was at least 20:1. The ratio of infringing to non-infringing on eBay is no more than 1:2000.
In this case the chump refused to submit a sworn statement to state that the material was infringing so the court threw out the case. The courts are entitled to consider whether the parties are acting in good faith and protect a good faith party from an unjustified lawsuit.
Looking for an Information Security student project suggestion?
Try http://dotcrimeManifesto.com/
Translation: I can't go to jail for perjury if I lie when making "general complaints".
/. If the government wants us to respect the law, it should set a better example.
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
EBay provides auctions, not internet service, so they are an "ASP", not an "ISP".
When a judge dismisses a case, they do so based on legal reasoning that does set a precedent. This can come in one of two forms. A case can be dismissed for failure to state a claim for which the court has the power to provide a remedy, or it can be concluded on "summary judgement" which means that there were no disputed material facts requiring a trial so that the question is one of pure law. Both types of order are usually supported with a written opinion.
I cannot tell which actually occured and the article doesn't link to the opinion.
(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)
Damn. I was really hoping they could throw out the whole takedown procedure in the first place. Or does the ruling indemnify E-Bay from any liability at all, allowing them to throw away the procedure?
I'm reminded of the posting here a week or two ago from someone who couldn't sell a personal copy of NT, CD and License, 'cause Microsoft kept complaining....
"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
Lawyers are the closest thing we have to a conscience in this country; without them, big government and big corporations would run roughshod over us.
And how would they do such a thing? With Lawyers! You think it's not "big government's" lawyers with their no holds barred attitudes pursuing Skylarov? It's certainly not a compromising attitude filled with compassion and a desire to settle the issue without litigation.
Lawyers are our conscience? Wow, are those just words, or what? At best, lawyers are a necessary evil in our society. Typically, though, they're a morass of sharks, eager to create more work for themselves by filing suits and pushing for legislation that gives them more opportunities to file suits.
Unlike journalists, lawyers are held to a code of ethics and when they violate it, they can lose their butts.
More bullshit. They're held accountable by the American Bar Association, their own brethren. That's like saying that the Direct Marketing Association holds its members accountable for spamming.
let's remember that they're human beings
So was Timothy McVeigh. What's your point?
As I said before, at best, lawyers are a necessary evil in our society, like hydrogen bombs. As with hydrogen bombs, ways should be sought to minimize their use in our country. Instead, the foxes are running the chicken coop in Washington, turning out as much legalistic soup as they can to keep us all dependent upon them.
Why are you letting these clowns ruin our country?
I had a similar, if far more trivial, case. I posted an auction with a digital picture of the item being offered. Another seller "stole" my picture (and most of my clever auction listing text) to use in his own auction of an identical item. It was obvious that the image was the same (it was shot on my desk) and the words were clear plagiarism.
A few notes exchanged with eBay, along with an "affirmation" that I took the image with my own digital imaging device, and the offending auction listing was history. It eventually re-appeared, with a poor(er) quality picture and revamped words, but my point had been made.
Too bad for Mr. Hendrickson that he didn't comply with such an oh-so-simple request. It worked for me...