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eBay Bargains Soon To Be A Thing Of The Past?
ScaredOfTheMan writes to mention that, as expected, companies are utilizing the decision in Leegin Creative Leater Products v. PSKS to force the take-down of auctions on eBay because auctions are priced too low or even stating the auction itself is an infringement of their intellectual property rights.
... in other words, the price which the buyer is willing to pay and which the seller is willing to accept.
Any other kind of pricing is rigged.
I predicted here that companies would soon rely on the Supreme Court's decision in Leegin Creative Leather Products v. PSKS to justify interfering with competition from less expensive products sold online. It did not take long for that prediction to come true. Although interference with eBay sales is nothing new (see here and here), companies in two recently filed federal cases explicitly invoke Leegin as a justification for terminating the eBay auctions of competitors that charge lower prices online. These cases not only show Leegin's likely effect on Internet sales, but are also, unfortunately, fairly typical examples of the sort of anticompetitive actions companies take to fight lower-priced competition online.
In the first case, Merle Norman Cosmetics v. LaBarbera, No. 07-60811 (S.D. Fla.), Merle Norman Cosmetics filed suit against eBay seller Joyce LaBarbera for selling its makeup on eBay at a discount. The company had previously terminated a variety of eBay auctions by claiming that the sale of its makeup violated an unspecified FDA regulation. In this case, however, the company concedes that the eBay seller could rightfully resell the makeup on eBay if, as she claims, she purchased the makeup at a flea market. Merle Norman, however, suspects that the eBay seller is in fact buying the makeup from a salon that, pursuant to its contract with Merle Norman, has agreed not to sell anything on the Internet. Merle Norman says it demands these contracts so that purchasers can only buy the makeup at Merle Norman stores, with the guidance of "beauty consultants" who are "specially trained in proper hygienic practices." Of course, the contracts also help ensure that the products won't be available outside the stores at reduced prices.
Although Merle Norman does not claim that the eBay seller ever contracted with the company, it contends that the seller's act of purchasing the makeup from a salon that had entered such an agreement and then selling "at discount prices" on the Internet constituted unfair competition, interference with its contracts, and civil conspiracy (see complaint). In other words, the eBay seller, according to the company, is guilty of breaching somebody else's contracts and unfairly competing by selling to consumers on the Internet at prices that are too low. In its brief in the district court, Merle Norman relies on Leegin, which had been decided just a few days earlier, in support of its right to "require dealers to charge certain resale prices to promote interbrand competition." The company claims that "the law is well settled that manufacturers like [Merle Norman] have the right to control the manner of distribution of their products." Although the district court denied the pro se defendant's motion for a preliminary injunction, the case is now on track for trial.
The second case is Colon v. Innovate! Technology, Inc., No. 07-21349 (S.D. Fla.). Innovate! Technology ("ITI") is a company that makes high-performance car parts. According to its brief in the district court (warning, large file), the company "sells its products only via authorized distributors and retailers" that "comply with ITI's policy of Minimum Advertised Pricing." The company views sales by unauthorized sellers (i.e., those who sell too cheaply) to be not only a violation of its minimum-price policy, but, surprisingly, as an infringement of its intellectual property rights. ITI's eBay "About Me" page explains that the sale of its products by anyone but an authorized dealer constitutes patent and trademark infringement. Moreover, the company claims the right to prohibit all use of its copyrighted "technical data, photos, graphics, software, product literature, catalogues, product specifications, installation guides, user guides, promotional material and other types of information" without its permission. In other words, the company claims it is copyright infringement to read its user guides and manuals, browse its catalogs, or look at its pictures without its "express written permission." Presumably, the company f
ITI's eBay "About Me" page explains that the sale of its products by anyone but an authorized dealer constitutes patent and trademark infringement
The seller wasn't even under contract. Are they saying that I can't resell a wrench (or shoe) that I just bought? It's MINE! Can the seller selling the makeup get around this by saying that the products are "used"? Like she licked the box or something.
My first thought after reading this was something like:
"Great, first you can't copy your own CDs, now you can't sell your owm belongings... Before you know you won't be able to even kill yourself".
But then I remembered that suicide is considered a crime in some, if not most of, western countries (like mine, Spain). Too late.
English is not my native language. Corrections are not only welcome but encouraged. Thanks.
-Walenzack.
Yes, they are attempting to block reselling products ... online.
... online ... if they get their way.
No, stating that it is "used" would not circumvent this
The online part is important. It is the online part that is hitting their sales. People can quickly search for lower prices. Certain vendors do NOT like that.
So they hit back with every legal weirdness they can find. You can't use their trademarked names. You can't use photographs of their products. Etc.
It's stupid and it should be shot down. But we'll see how it eventually works out. Right now it's easy for them to win under the DMCA.
BAM! The door splintered off its hinges, and toppled into the room. The cats yowled and scrambled under the furniture. Six police officers with plexiglass masks and riot guns stormed into the room and surrounded Granny's overstuffed floral-patterned armchair.
"Oh, my!" said Granny.
"Drop the knitting!" shouted one of the officers. "And keep your hands were we can see them!" he added.
Granny released the needles, and the scarf fell into her lap with the yarn. The officer who had spoken reached out with the barrel of his gun and nudged the knitting from her lap onto the floor.
"Clear!" shouted another officer.
A young plainclothes officer carrying a digital clipboard entered the room, gingerly stepping over the wreck of the door. He gave the heap of knitting a scowl, and stopped in front of Granny. The riot police shifted aside to give him a clear view of her.
"Abigail Theresa Winslow?" the officer read from his clipboard.
Granny removed her reading glasses and looked up at the man. "Yes, that's my name." she said.
"You are hereby charged with Economic Terrorism in the 2nd Degree. You have the right to remain silent. Anything you say is being recorded, and can be used against you in a court of law."
"I don't understand!" wailed Granny, wringing her hands.
The officer ducked down and picked up Granny's knitting. He held it up to the light, lifting it with only his thumb and forefinger, as if he did not like to touch it.
"This is a beautiful scarf, Mrs. Winslow." he said.
"Oh, thank you, but--" Granny began confusedly.
"I can tell you spent a lot of time on it." said the officer.
"Well, yes, I--"
"We have witnesses willing to attest that you sell these scarves for no more than the cost of the yarn..."
"Yes, I just enjoy making--"
"...Severely undercutting the prices of your commercial competitors by an order of magnitude, in spite of the fact that your scarves are obviously superior handcrafted products."
"I... I... well, ... Thank you?" said Granny, still confused, but recognizing the compliment to her handiwork.
"Don't get funny with me, Lady!" the officer snapped, leaning in close to Granny's face. "You should be ashamed of yourself! This sort of underpricing makes me sick! I've come to expect this kind of altruistic bull from hackers and teachers, but I never expected it from a respectable citizen with no criminal record. What is this world coming to?"
"Well, I never!" exclaimed Granny.
"Take her away, boys." said the officer.
Two of the riot police gently handcuffed Granny, and lead her out of the room.
"Send in forensics to bag the evidence." said the officer, dropping the knitting, and wiping his thumb and forefinger on his shirt. He looked around the room, and shook his head sadly. "When will people learn? She acted like she didn't even know it was wrong."
Not me personally you understand, but the company I work for. We were having a problem with a lot of our stock (especially seconds) turning up on ebay at sometimes less than 1/3 the SRP. We would also get lumbered with damaged returns that had found their way into the channel. Because our company knows most of the customers personally, we did some digging, whois.sc is your friend, then when the companies selling the cheap/returned goods came to order more stock, there was mysteriously no stock left for them. No stock, nothing to sell, at least non of our stock. However a lot of other people who were not selling too cheaply were just "cautioned" and "its ok as long as the prices are good"
I guess it depends on your organisation, some like ours are big enough to be the one of thebiggest manufacturers of this product but small enough to know every retail customer we deal with, and can therefore control the distribution channels quite effectively.
And before anyone moans that the market should dictate prices etc, bear this in mind. If one of your customers is worth over $60,000,000 a year, and they are working on small margins, retail sites and are getting undercut by some guy flogging stuff in the back of his van/ebay, how long till they turn round and stop selling your product, and therefore you potentially just lost $60 million.
http://www.writeitfor.us - Writing IT for the IT generation.
> With all these bullshit patent, copyright, and now 'intellectual property' lawsuits pooping all over the place.. and the greedy
> lawyers earning their greedy reputations, I predict a new kind of legal letter...
> It's called the 'Fuck Off Response.'
There's similar precedent, in the UK at least:
http://en.wikipedia.org/wiki/Private_Eye
An unlikely piece of British legal history occurred in the case Arkell v. Pressdram. The plaintiff was the subject of an article relating to illicit payments, and for a change the magazine had ample evidence to back up the article. Arkell's lawyers wrote a letter in which, unusually, they said: "Our client's attitude to damages will depend on the nature of your reply". The response consisted, in part, of the following: "We would be interested to know what your client's attitude to damages would be if the nature of our reply were as follows : Fuck off". This caused a stir in certain quarters. In the years following, the magazine would use this case as a euphemism for an obscene reply: In subsequent cases, instead of using the obscenity, Private Eye (and others) would say something like "We refer you to the reply given in the case of Arkell v Pressdram", or perhaps "His reply was similar to that given to the plaintiff in Arkell v. Pressdram ". Like "tired and emotional" this usage has spread far beyond the magazine.
When I first started using Ebay you could really get a bargain, and that's why I went there. However that was a long time ago. These days you're likely to see used goods sold at 80% or more of the original "brand new" product...sometimes they go for more than brand new which makes me wonder how legit these sales are. The other thing that makes me wonder is how I started getting second chance offers. What put the nail in the coffin for me buying stuff off Ebay though was my dissatisfaction at the handling of a dispute over a very low value item. (About US20). I got broken used goods where the claim was that the goods were "still in shrink wrap". Yeah re-shrinkwrapped. The proof I had to get to get my money back was certainly not worth the $20 and the seller started threatening me with legal action over factual comments I left on his feedback instead of dealing with the issues. So I issued a chargeback on my credit card, I closed my paypal account, and haven't used my Ebay account since. That was sometime last year.
Another time I was very lucky to get a much more expensive pair of items because the seller got the address wrong. Fortunately the goods got to me, but when I questioned the seller over whether the address was obtained from my Ebay account they just got defensive. I'd have been out US350 if those goods hadn't arrived. I've heard much worse horror stories from acquaintances at work but I'm not privy to the details and don't know how true they are.
Also fee increase over the years have made it not worth it to list low value items. So these items don't show up if you're a buyer and if you want to sell them you know you're better off trying to pawn them off to friends.
In short, Ebay isn't what it once was, at least for me. It was once an excellent place to get a bargain or get rid of unwanted goods.
These posts express my own personal views, not those of my employer
Not exactly. Auctions that follow the Vickrey auction scenario are much closer to the "right" market price. Basically, everyone posts a secret bid, and the person who bids the highest wins, paying the price of the second highest bid. I've read numerous studies (too lazy to link to them) that conclude the Vickrey auction to set a much fairer and true price than traditional auctions.
I got nothin'
Problem is Quality is relative.
I can get you a power conditioner for your home entertainment center.
One costs $199.00 the other is $3500.00
One is from tripplite, is very nice but economy priced.
The other one is from richard gray power company. and is fantastic on paper.
Unless you understand electronics and electricity. then you realize that one of them is a complete and utter scam. The salesmen even tell you to inform the buyer that it will take from 30-60 days for your capacitors in your equipment to re-learn and get conditioned to the new cleaner power. Coincidentally that time happens AFTER the return period is up.
guess which one is the snake oil garbage? Hint: not the one that is affordable.
People do not understand quality because they refuse to become educated enough to make a decision based on quality. so they look at price. High price = quality right! that Sony Viao is a far better laptop than that lenovo, it's more expensive! That Ferrari is far better than that ford,GM,toyota... it's way more expensive.
Fact: Ferrari's are garbage, having owned a 308 they are utter crap with a fancy name tag. Nice technology, but reliability is horrid they are designed for performance not reliability.
Fact: Sony laptops are crap compared to lenovo and other brands, hands down. I have trashed more Sony laptops than anything else, even the low grade Dell beats sony in longevity. Online there are far more people complaining about Sony laptops than any other brand. (well maybe gateway has more complaints)
Problem is it takes education, LOTS of education to buy smart and for quality. Education is not what the consumer wants to hear, they want to buy their new "ooh shiney!" right now.
Me getting a grey market refurb Video ipod that looks new and has a 30 day warranty for $120.00 less than retail, on ebay gives me an extra $120 for more ooh shiney.
and that is what matters.
Do not look at laser with remaining good eye.
It's more complex than that.
E.g., what if it's a counterfeit product? It's damn easy to undercut someone's prices when you don't have to invest a cent in research (even if it's "what are people willing to wear this season") or even in marketing (since you're piggy-backing on someone else's brand image and using their own marketing investment against them.) Often you can cut more corners too, because, hey, if the product malfunctions spectacularly or even hurts someone, it's not _your_ brand image that goes down the drain.
Or what about stolen goods? Or defective goods which someone was supposed to dispose of, but made a bit of money on the side auctioning them? It's damn easy to undercut prices when you're selling stuff you got, essentially, for free by illegal means.
Or the case comes to mind which saddled us all with frequency- or multiplier-locked CPUs. A bunch of dishonest fucks figured out that they can take, say, a cheap 100 MHz CPU and overclock it to 133 MHz, make a computer with it, and sell it for quite a bit of profit. Remember that at the time most of the ID of a CPU was what was printed on it, and it was up to you to set the motherboard jumpers right. So, being that the CPU in a complete computer was under a heatsink, there wasn't even much way to see if you got defrauded without taking the computer apart, which Joe Average didn't usually do. But some went as far as to erase what was printed on the CPU and actually print the higher CPU frequency on it.
It was something which actively damaged Intel's reputation, and later AMD's when they were the last to sell unlocked CPUs. People were buying computers which kept crashing, or only worked as long as the temperature in your room was under 20C. Summer comes and your computer is a dysfunctional piece of shit. You'd maybe take it back to the shop and they'd tell you some "yeah, we've had a lot of problems with bad Intel CPUs lately." (When the only problem was that they had defrauded you of a lot of money.) There was a _lot_ of "Intel CPUs are shit and crash all the time" bad reputation built at the time. And later it was "AMD CPUs are shit and crash all the time."
Just, you know, in case you were wondering why CPUs are locked nowadays.
So basically it's trivial to have some auction where the whole point is that it's _not_ fair and open, you're not even buying what you think you're buying. And it might not be a price that a normal, honest seller would ever accept.
Plus, just because Slashdot has _yet_ _again_ a lopsided and inflammatory story, it doesn't mean you can jump to a conclusion based on it. There used to be a time when the stories actually had anything to do with technology, and it was exciting new stuff, not "version 2.5.1.2 of Product X released, people advised to patch their 2.5.1.1 version." Nowadays it seems that lopsided "company X is violating your rights if they don't buy me a pony" astroturfing is more common than anything even remotely related to computing.
So basically, if a story seems like a clear-cut "side X is 100% right, side Y is 100% wrong and are evil fucks to boot", that's usually your clue that you're spoon fed an astroturfing story. Reality is rarely that neat, and the devil often is in the details you're not getting, or are getting a cherry-picked slightly-warped version. If you can cherry-pick only the details you like, you'd be surprised how far reality can be warped. (E.g., think, "Hitler was buying roads and factories and the allies attacked him for it." If you conveniently omit such details as, you know, that three continents were plunged into all out war at the time and the ethnic cleansing part, the whole story takes a very different angle.)
A polar bear is a cartesian bear after a coordinate transform.
"Uh. Rigging is the whole point of intellectual monopoly law. It's antithetical to free market capitalism. I don't know why you're surprised, america - you're about as capitalist as the soviets were communist."
People keep forgetting that the Internet routes around damage. There is no such thing as a monopoly when the whole operation can be moved to servers in another country. You're a seller in the US, and you want to sell to someone else in the US - just auction it off on ebay in the UK or Canada or france.
Kevin Smith on Prince
Fact: Ferrari's are garbage, having owned a 308 they are utter crap with a fancy name tag. Nice technology, but reliability is horrid they are designed for performance not reliability.
Two points:
1) The 308 is an old car. Would you bash Ford now for the Pinto? That was 35 years ago. New Ferraris are much more reliable, and use much more modern manufacturing methods. Older Ferraris were basically hand-built, tube-frame cars.
2) Ferraris (esp. in the 308's time) weren't known to be reliable, just fast. Want reliable? Get a Toyota. Want fast? Get a Ferrari. Want to walk away from a crash at 160 mph? Get a Ferrari Enzo.