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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 ? .
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.
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.
I do remember that story and since then I've done a little foot work to see what the deal is.
Looking to the DMCA itself, what happens when infringement is suspected? Well copyright holders (or more typically their lawyers), can send a letter to your ISP (or other network provider) and they then cut off your service or risk being sued. Actually if you look at the wording in the DMCA, it appears that the intent was that action be taken only if you are actively infringing on copyrights, such as hosting files on a website, at the time of the receipt of the copyright holder's letter (amended section 512 of the Copyright Act). One problem is that the limitations on damages appear to allow an ISP to cut off all service whenever a notice is received without any repercussions and regardless of any actual infringement (Section 512(g)(1)). A second problem is that even if you aren't infringing at the moment, the fact that someone said you were might be enough to negate the ISP's protection should you infringe in the future (see Section 512(c)).
The DMCA does explicitly allow you recourse however. Pursuant to Section 512(g)(3) you can file a counter notice with the ISP and they have to restore your access within 14 days unless the copyright holder files for a court order against you. I don't know how this will intersect with the notion of arbitrary service termination in many license agreements, however. Furthermore, if you prove in court that you did not commit the act of which you are accused then the accuser may be subject to paying monetary losses, punitive damages and legal costs.
IANAL, but I am a concerned citizen (IAACC, anyone?)
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.
The problem, of course, being that you have still suffered an interruption of a service you pay for, because some copyright owner said you were doing illegal things. The source of the problem is that the law asserts good faith from the copyright holders, and relies on them to not make any errors. When an error *does* occur, then the customer ends up being branded a criminal without having any kind of chance to challenge this verdict BEFORE his access is terminated.
Presumption of innocence does not work for companies, and the DMCA seems to openly take advantage of that fact to try to scare people who might want to violate copyrights: "We need proof to send you to jail, but we don't need any to cut your internet access..."
"I remember Y1K, every abacus had to get another bead"
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.