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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!
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)
"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