Slashdot Mirror
eBay Sues Auction-Indexer
Seth Finkelstein writes "According to a story in the Boston Globe, eBay is suing an auction-indexing company. eBay says
its auction data is unique, and legal claims include
'trespassing, copyright infringement, and false advertising.'"
The suit was filed "under a California statute originally written to fight 'cracking'" - I wonder if that's how trespassing got listed as a charge.
Here's a little more background on this lawsuit. In early October, an ABC News story described how the auction-indexer, Bidder's Edge, had taken out a full-page New York Times ad slamming eBay's protective attitude. At that time it decided not to list eBay items. In early November, it changed its mind and, says a ZDNet story, put eBay items back on its site. Thus the lawsuit.
If a specialized search engine for auctions is illegal, aren't all search engines illegal? Disobey the robots.txt file and go to jail?
That's all sherlock does, give you an integrated eBay search with your local searching...
Since when Has Indexing any web Page (which is on public Display Illegal? I can understand if you are Stealing copyright information, but how can you tresspass by indexing a web page? I would think it would be more of Plagerism then Tresspassing...
WHY ISNT LS WORKING ON MY PC?! well it's ls not LS LS IS NOT WORKING! turn caps off CAPS HAS NOTHING TO DO WITH LS!
The 'trespassing' thing is the most interesting; it implies that anyone who accesses the data on the eBay sever is guilty. And supposing it's there for people who are thing of buying; does that mean that browsers (people that browse, I mean) are also guilty?
As for 'false advertising'; that's just bullshit (probably; the Globe doesn't really elucidate).
First Amazon trys to monopolize the cookie, then AOL gets 600k against spammers, now this?
What next? Armageddon? Slashdot patents the forum?
Instead of rehasing the obvious and just saying the USPO sucks, blah blah blah, how about I throw a question out for the legal minds on /. - What alternatives do we have to such a system (ie: how does one pressure government to correct this, and/or how would one go about practicing civil disobedience in a positive and very public way)?
Isn't this 90% of what Slashdot does? Heck, it's 90% of the Internet. This could hae some really nast implications...(Microsoft, today sued everyone who said anything bad about them, claiming a drop in stock price as a result).
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Earth first? Oooh, and I was thinking of paying the rent.
Jamie wrote:
"If a specialized search engine for auctions is illegal, aren't all search engines illegal? Disobey the robots.txt file and go to jail?"
Well, maybe it *should* be illegal. I suppose that constitutes an unauthorised access of a network, despite explicit instructions through a known standard to stay off of that network.
Still, it's creepy, no?
BTW, eBay has no robots.txt file. That, IMHO, gives them no room to gripe.
Just curious as to everyones opinion here. ebay makes more money the higher the bids go. Why wouldn't they embrace this free advertising? I could understand if someone was stealing products from them but how could they. Also ebay doesn't have advertising(do they?) so they're not losing anything there. Perhaps they're afraid that people will notice links to other auction sites on these listings? What are your thoughts?
"as plurdled gabbleblotchits on a lurgid bee" - Prostetnic Vogon Jeltz. (One man's humorous is another mans flamebait)
Sosumi. just kidding. DONT!
Yet another in the recent barrage of articles regarding what exactly constitutes "property" (in terms of information) as it applies to the internet.
:)
I think that without a doubt (and it's been stated many times before, in other articles) a completely new set of laws related to these internet property issues must be devised. The only problem is, do we really want the US Congress (for those of us in the US) to be the deciding factor in issues like this? We also don't need to see another Communications Decency Act.
Solution: The government should appoint Slashdot as the official legislating group in all matters related to the internet, since we always know what's best.
I don't think the effects of this lawsuit are quite as far-reaching as it looks. IIRC, EBay has expressly forbidden all search engines to index their pages (I think there even was a story on that here on /. some time ago).
So this company simply did something they knew they were not supposed to. Their fault. But that doesn't mean that if EBay wins, linking will become a crime (ignoring robots.txt maybe, as somebody else has pointed out - at least when you make money with ignoring it).
EagerEyes.org: Visualization and Visual Communication
It is one of the cardinal rules of running a search engine service, with its corresponding spidering efforts that we ensure we comply with the owner's requests regarding examining their site as contained within a Robots.txt file. I work for a search engine company and we certainly make every reasonable effort to do so.
If E-bay has such a file on their system which requests that spiders NOT search their site, then it seems reasonable to say that no-one should index it. If they do not have such a file, then it ought to be open season. Of course, this would exclude them from being listed in regular search engines - but you can't have it both ways.
The most disturbing thing about this to me is the threat that this may affect linking period - as rediculous as it would be to me to say that in order to link to a site you must obtain the site owner's permission - it might not seem so to a US court (who seem capable of making the most patently(every pun intended) absurd decisions where the internet is concerned).
Mind you, threats like this have come and gone before, but I still expect some US judge in some tiny court somewhere to make some pronouncement that threatens the entire Internet - out of ignorance no doubt, but that may not matter.
While the internet should be an international medium of communications, in reality it is a US means of communications and is directly controlled under US laws. As long as this is true, it will continue to be subjected to threats like this. What we need is an international body of law which governs internet communications that acknoledges the rest of the world as being part of the whole picture.
"The first time I got drunk, I got married. The second time I bought a chimpanzee, after that I stayed sober" Arian Seid
They could lose banner money when people do the searches on e-bay, or they can lose to other auction sites. If I could tell you where the cheapest pop in town was, you would go there, wouldn't you? If you went to a random grocery and it was cheap, but you didn't know if it would be cheaper other places, you might get it even though it could possible be more expensive than other places.
I have mixed feelings on this. On the one hand, I'd say that once ebvay explicitely says "no", then no, you can't copy their contents. However, linking, and even "grabbing" stuff from websites is so deeply entrenched in the way the web works and is utilized that it's a dangerous precedent at best.
If you take the time to read the article, it's not about patents. It's about "copyright infringement and trespassing."
Notice that the only reason eBay should care about this is that the punters will be looking at the 'wrong' adverts: those on the indexing site, rather than those on eBay.
From a traffic point of view it should benefit eBay to be linked to by any manner of search or redisplay sites. That is the principle on which the rest of us work. I'd love to have my site watched and the information on it passed on in any form to interested parties.
It's only the advertisers on eBay who are losing out - and who ultimately pay for the lawyers.
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Dere's a storm a-comin'...
i don't know about the rest of you, but i'm sick of of these dot com heavyweights throwing their weight around trying to rid the net of any competition. i could see this being an issue if you were required to have a membership on ebay to view auction data, but since they give all the info out for free anyways, why is this an issue?? and while i'm harping on companies, i'd just like to say that i'm sick of hearing about new patents and patent suing that is going on. *sigh* now i'm finished.
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This Post has been brought to you by the letter "E".
So eBay has filed suit in US District Court in San Jose under a California statute originally written to fight "cracking," or breaking into computers.
Oviously, Bidder's Edge isn't cracking anything, at least by any sane definition. Can anyone post the text of (or a link to) the statute referred to above? I'm curious how the State of California defines "cracking".
See the rough start here
Granted, this lawsuit gives off a very bad smell, but how else is eBay is going to keep surfers on their site and surf pass their ad banners? They've taken the time to set up a site to manage *thousands* of auctions at a time, and then some third party comes along, writes a simple search engine, and tries to get surfers to switch to their site to look at *their* banners.
If eBay thinks hits on their banners are *that* important, they should put more on the pages that describe individual auctions' and deal. What do you all think?
George Lee
I'm not sure how this really threatens ebay financially. They don't have much for banner ads, and I think most of there revenue comes from the charges for listing your product on their pages. How does this "parasite" comapny make money from ebay? Do they have banner ads? Charge people to view the data? The only thing I can think of is banner ads, as it's pretty hard to charge for a limited increase in "information value" (whatever you call it) over something you can get for free somewhere else in a similar form.
Has this ever been ruled upon in the courts before? I don't know of any cases, I'd be interested in any that might have been. What worries me is that ebay seems to think that linking = cracking (cracking being the word they used). If this is all they have to file a lawsuit I don't think they'll win, but you never know. That goes right to the issue of the legality of links we've been seeing the past few weeks. Stories like this support my theory that capitalism is incompatible with the "information age", but thats a whole seperate issue.
eBay doesn't want competition. These indexing sites index eBay *and* other auction sites. eBay would be happier if you didn't know about other sites, and certainly doesn't want there name to be listed next to any of the "lesser" auction sites.
They want to be number one (and, preferably, the only one). If they weren't already number one, I think they would have a different attitude.
-- Don't Tase me, bro!
I am the sysadmin of a college online community (www.sin.wm.edu) and we've run into interesting issues. We are considering paying for a weather service to give us weather information every 10 odd minutes for us to parse and put into a web page.
:-)
... I believe i have change coming. ;)
This is because our old plan, that is parsing the Weather Channel home page's weather information for our region, has become legally suspect. At least our lawyers tell us so!
This is funny for two reasons:
1. It can't be legally suspect because of content. Please don't tell me the Weather Channel online has copyright to the weather. Weather is by definition public domain and I don't see any copyright infringement from using the information therein. Would you get in trouble for telling someone else what the weather is by word of mouth, without accrediting TWC? Weather is weather!
2. It can't be legally suspect because of implementation. We're not using the Weather Channel's implementation *at all*. Their layout is theirs, and we're just using the (aforementioned, public domain) content. They have an entirely different HTML structure, we actually parse out all the HTML and formatting and use the bare, public do main weather content.
So if it's not the content, and not the implementation, what is it? Why are our lawyers jumpy? It almost sounds as if the Weather Channel would get angry because we dared to rebroadcast the weather data they rebroadcasted from the National Weather Advisory (or whatever the organizational body's name is)... At least in the eyes of our paranoid lawyers. The Weather Channel hasn't bothered.
This leads to another issue. I promised you XML in the title and XML you wil get. XML's entire raison d'etre (reason for existence) is to make parsing of information easier. Yet, if we are to deal with a generation of confused copyright lawyers who aren't sure if parsing is legal or not, what's the point? XML makes content implementation-free, that is to say if I parse, TAG FOR TAG, the information off of the Weather Channel 2000's XML Weather Page, then my implementation and their implementation can be drastically different, but we could have the same DTD's and therefore the same content.
And the content is, unless you are seeing something I'm not, public domain. Please tell me weather is public domain. If it's otherwise, I'm going to kill myself now.
Do DTD's count as content, or implementation, or is it an open standard that is to be used as all (read: "public domain") I'm not sure, but if more incidents occur such as ours, then we should look into:
1. Reconsidering XML
2. Reconsidering what constitutes public domain
3. Firing our lawyers and hiring a younger generation
That's my $0.02
Three Step Plan:
1. Take over the world.
2. Get a lot of cookies.
3. Eat the cookies.
Then all the money made from frivolous lawsuits could go to Free Software.
The message on the other side of this sig is false.
Ebay makes money through at least two means: 1. They charge a fee for selling items. 2. They get paid to advertise. They could argue that by indexing their content, they would loose that revenue. Now, these advertisements seem to be very sparse as it is, but they do not appear on the actual item listings, so in a way, it is bypassing this mechanism for Ebay to make revenue. In addition, Ebay advertises its own online store with fantastic Ebay merchandise, and again, this would present situations in which potential sales could be missed.
Would it be illegal for me to advertise one of my EBay auctions on Usenet? (I know it would be annoying unless on alt.forsale...) Then would Dejanews be breaking the law by finding my advertisement for someone?
I think of the Internet as a public forum. Everything posted on non-secure sites should be available for linking and searching. The web is compelling because there is so much information linked and searchable. These lawsuits are setting dangerous precedents.
I do see a problem with commandeering someone else's content and then putting your own banners around it. That is different than what (most) search engines do.
There was a very similar lawsuit here in Orlando a year or two ago. During the ratings sweeps two of the three primary affiliates began mass mailings with contest numbers on them and during the 6 O'Clock and 11 O'Clock news broadcasts they would draw a number and people would win the standard monetary prize. The third station began broadcasting the numbers from the other stations two contests during it's 6 and 11 O'clock news broadcasts. The first two channels sued the third and the courts required the third channel to cease broadcasting the numbers.
I think this case will go the exact same way.
Granted, this lawsuit gives off a very bad smell, but how else is eBay is going to keep surfers on their site and surf pass their ad banners? They've taken the time to set up a site to manage *thousands* of auctions at a time, and then some third party comes along, writes a simple search engine, and tries to get surfers to switch to their site to look at *their* ad banners.
If eBay thinks hits on their ad banners are *that* important, they should put more ads on the auctions' pages and deal. What do you all think?
George Lee
I am a lawyer, but this is not legal advice. If you need advice, contact an attorney licensed in your jurisdiction.
.) covers a trespass with a "thing" caused by the tortfeasor's actions. Even air can qualify as a thing--this was the cause of action used for windows broken by concussion from dynamite blasts and the like.
There is no need for a statute to sue for trespass here--the Common Law has recognized "trespass against chattels" as far back as we have records. Kicking a man's dog could qualify.
The law also does not require personal contact. "Tresspass vi et armis" (sp? haven't used the phrase in ten years . .
Finally, note that this is civil, not criminal trespass. Generally no warning need be given. While trespass requires specific intent, it is the *act* that causes the trespass, not result of the act or the knowledge of ownership by another that matters. If I take a step, believing that I remain on my own property, but actually cross the line into yours, I've committed trespass. OTOH, if I suddenly fall and happen to land on your property, there is no intentional act, and no trespass.
I'm actually surprised at how few of these we see; trespass is trhe obvious cause of action for computer intrusion.
hawk, esq.
If I decided to mine through the /. articles and comments and present their content on my own site for people to search through without ever hitting the slashdot server (or viewing a slashdot ad). I'm sure the recently public Andover.net legal team would be quick to point out the following:
... so who am I to steal that data for my own commercial venture? And don't even start crying "fair use" because it does not come into play in this scenario.
... if this would be a "Your rights online" feature?
... sure, eBay may be handling the PR aspect of this poorly but the simple fact remains ... IT'S THEIR COPYRIGHTED MATERIAL and if they don't want you indexing/mining and re-serving it ... it's their right to ask/force you to stop.
... I contacted them and they promptly removed that option from any page on my site without question. I didn't threaten to sue and they didn't claim any ownership of my content or any "right" to serve it up to their users ... that's how it should work out in almost all cases like this.)
"All trademarks and copyrights on this page are owned by their respective owners. Comments are owned by the Poster. The Rest © 1997-99 Andover.Net. "
That's right, Andover.net owns the copyright on anything that's not already trademarked or copyrighted and not posted by users
I wonder if I were to be sued by the mega-corp Andover.net
My point to all this
(Note: I had a recent "go-round" with Google.com about them serving my entire copyrighted content without my permission via their "cached page" option
According to the article, Ebay is afraid that indexing is going to use up server time and bandwidth on their site. I don't see this as entirely true, however. If people know that they can get multiple auctions worth of data from one source, why would they travel to all of the separate auction websites to look? By being indexed, Ebay is actually losing individual people hitting the site, and gaining the (relatively less) amount of hits of being indexed. Their service then runs faster, people are more pleased with it, and they get even more business!
"May the Code bless you and keep you until the day of your Compiling." ~Requiem
As an aside the METAR data is freely available. Drop me an email and I'll pass it onto a friend who has written a bit of software to grab flying weather information. He can point you to the protocols and you should be able to wrap your own :)
robots.txt only works for well behaved bots. Spam bots, site rippers etc. are quite free to ignore it. These days people are getting lazy about writing well behaved search engines, for example I had Infoseek's bot hit my site twice this week, and it attached 20 sessions at once *grrr*
First, IANAL.
In my next post, I will try to list some good "straw man" scenarios for bringing the desired results. Right now, since no one reads postings after the first hour, I encourage others to toss in ideas.
Background: Assuming the current wording of the Constitution re copyright, trademark, patent, etc., notably limited time frames, and the intent to create a situation where the public benefits from creative/inventive work, will suffice to create the interpretation we desire, we need to generate "straw man" cases to ensure that the Constitution is upheld.
"Straw man" suits are situations manufactured specifically to create a case that will test the constitutionality of a law. They were used effectively by Civil Rights advocates to ensure enforcement of the 14th amendment (others please provide references), most famously in Brown v. Board (IIRC), where a special effort was made to enroll a black child in an all-white school in order to create the conflict eventually resolved by the Supreme Court in favor of integration.
Similar "straw man" tactics could aim at recent legislation like Sonny Bono and DMCA, and would also aim to clarify precedents such as fair use and prior restraint as they pertain to the internet.
Possible targets for straw men:
DMCA prior restraint by letters to ISP's for "suspicion" of copyright violation, (previous whistleblower cases effective here, but a good straw man should be able to even stop most ill-advised injunctions)
DMCA fair use restriction by banning "devices" that could be used to copy,
Fair use restriction by likes of eBay, trying to pick and choose who can link their site.
Patent hoarding, plus attempts to enforce overbroad patents
Software licensing that violates fair use by trying to claim licensees have no ownership-like rights
Software patents as not per the intent of patent provisions of Constitution
Attempts to claim databases of public information as copyrighted data (eBay vulnerable here, Westlaw the worst perpetrator)
The monopolization of broadcast channels by a few large providers
etc, etc, etc
Real killer straw men would take down several in one swath, by demonstrating new principles, such as:
Speech that is easily published and accessed deserves at least the same level of protection, perhaps more;
The power/resource imbalance of corporations and institutions vs. individuals is similar to that of the government, and thus even the possibility of unfair restraint on use of IP can be held as prior restraint;
The ability to make high-quality or exact replicas does not equate with intended or actual violation of copyright;
there are probably others...
So, any ideas?
"You can't get something for nothing." - my grandfather, on the stock market and Reaganomics.
I've used ebay, and I've used Bidder's Edge, and I don't believe this is necessarily an assumptions on the matter.
/. headlines on your web page are going to be in BIG trouble...
- Ebay has a database of its auction information
- Ebay dynamically creates web pages to reflect searches that users perform
- The information in Ebay's database is copyrighted by Ebay
- indexing and distributing a portion of a copyrighted database is illegal unless you have the permission of the copyright holder
Bidder's Edge clearly does a search of ebay's databse, probably by using the public interface ebay has provided. They are not merely providing a link to static pages; they are searching a copyrighted database and then providing its users with the results. They are doing this for profit (note the banner ads). I think that ebay has a pretty good basis for a lawsuit.
However, I can't see how Bidder's Edge would be guilty of cracking or trespass. If I provide a public interface to my database, it's hardly trespass if someone uses it. I wonder if they had ordered Bidder's Edge to cease and desist before filing this lawsuit, explicitly denying them from accessing ebay. If so, then I think it's an open and shut case.
And the moral of the story - all you guys out there who have written a script to display
At least he put a GODDAMN subject this time instead of his ersatz ellipses.
,,,
PS. didja notice there's a fake, "Signail 11," who uses commas?
Pope
It doesn't mean much now, it's built for the future.
Search for:
Here's one point against eBay. There is an accepted method of posting a "No Trespassing" sign for robots, and eBay is NOT USING IT.
http://www.ebay.com/robots.txt
P.S. Be careful, clicking this link may be considereed trespassing!
first of all it IS their site - if they dont want to be searched by a given entity they should be given that respect. this doesnt really infringe on our right to link i think - crawling a site and extracting metadata in order to merge prices with other similar sites is a lot different, and infringes on ebay's core business.
-- your knees hurt, don't they?
I think this case is a little more complex than a link to static information would be. Bidder's Edge could be constantly spidering all the changing auctions on e-bay in order to provide their service -- it could cost ebay more than the increase in sales the links create.
Deep-linking to a book on amazon is a completely different issue. Anyone following the link is likely to be interested in buying, and the only time there is a load on amazon's servers is when the potential buyer visits. With spidering the ebay server could be visited many more times than the increased sales would warrant. If many people took BE's position they could almost mount a denial of service attack on ebay. Ebay's hosting costs would rise and sales drop because of server load. Bidder's Edge and their ilk make a buck at ebay's expense.
In addition, sales through bidder's edge would bypass any advertising that ebay targets for people browsing it's sites - this could be an issue even if bidder's edge aren't spidering.
Bidder's Edge could provide their service by running a query on multiple auction sites on behalf of the user. That way there is only a demand on ebay when a potential buyer is interested - both parties should be happy unless they still want to fight over ads. Unfortunately this solution would be slightly slower for a user of Bidder's edge, so they may have chosen to make ebay foot the bill for their service instead of their customers.
+++++
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The harder you look the less you see. That's what we're up against.
> I'm actually surprised at how few of these we see; trespass is trhe obvious cause of action for computer intrusion.
I think the reason is that the internet was designed to be trespassed upon. For example, when I send you email, my message goes across many other servers en route.
It's going to be even harder to argue that eBay has the right to refuse access to the indexer when their website is open to the public. How freely can a company refuse entry to its premises? I know most restaraunts have signs that say that they "reserve the right to refuse anyone", but they really don't have that right. They can't, for example, refuse to serve minorities. To what extent *can* they refuse access?
Can they refuse access to comparison shoppers? I seem to recall a case where Best Buy kicked a comparison shopper out of the store on trespass charges. He was aquited and filed suit against Best Buy. I don't know the outcome of that suit, but the judge clearly felt that he had a right to comparison shop at a public store. That's all the auction indexers are doing?
-- Don't Tase me, bro!
The database vendors tried to get copyright protection for database content into the 1998 Digital Millenium Copyright Act, but failed. In 1999, they tried a separate bill, H. R. 1858, deceptively named "The Consumer and Investor Access to Information Act of 1999", to restrict copying online databases, but Congress didn't fall for that one.
So eBay can threaten, but probably can't do much. If they had a solid copyright case, they could have used the awful "notice and takedown" provisions of the Digital Millenium Copyright Act to force this competitor off the net. But if that didn't happen, their case is probably weak.
The "trespass" argument sounds like a desperation move.
What's interesting is that there's a case against the Onandoga nation, in upstate New York, who are selling non-taxed cigarettes over the interent and making a bundle. The Onandoga nation argues that the sale of cigarettes occurs on their ground, so it is outside the US tax law jurisdiction, but (I believe it was the Syracuse) D.A. says that the sale occurs on the users' side, and thus should be taxed. Interesting to see what the court decides...
lf.o
This smacks of a last minute management descision, that they don't want to be indexed by some particular other group, but they didn't know they cared last week.
I think the reason is that the internet was designed to be trespassed upon.
I agree. How can that be legal if the website is open to the public, even if they have a robots.txt file? Copyright laws and the internet simply don't mesh the way they do in other mediums, otherwise the internet loses most of its benefits. If the ability to "link freely" is lost, the internet becomes more one dimentional like television. If you can't find your way to relatively obscure sites, we're going to end up with nothing more than amazon.com and cnn.com.
If anything websites like this increase competition very directly. Of course ebay doesn't like this for that very reason, and I hope the judge realizes that. These websites help in reducing products to a commodity, which is favorable to the consumer, and bad for the corporation. Ebay reminds me of microsoft in this respect, as microsoft tries to hijack (make proprietary) public protocols (tcp/ip, etc) for it's own profit/control.
On another interesting note, there is a webpage www.dealpilot.com that has the same idea but for online booksellers instead. So don't be suprised if we hear about amazon sueing these guys sometime in the near future.
But does the judge know this? What if some company claims that robots.txt is an information access control mechanism rather than a server usage policy document, and accuses a human of bypassing that file to gain unauthorized access to semi-restricted information placed on the server without any real access control (say, they try the "secret URL" trick)? Ok, the human isn't a robot, but maybe his browser could be considered an automated client? Perhaps a single HTTP request doesn't count, but they can probably check their logs and come up with a number of accesses in a row (they were for inline images; who cares really), not one of them is for robots.txt, and the guy is fried.
It's just one scenario out of several possible. What about proxy search engines, sending user queries in parallel to the search facilities of several servers; are they supposed to obey robots.txt too? What about document processing facilities such as the Babelfish or an HTML syntax verifier?
Be careful about what you say in those laws.
Ridiculous patents, ludicrous lawsuits, pathetic domain challanges, unhelpful licenses, inappropriate trademark infringement claims, prosecutions for mere linking. The whole scene is getting ridiculous, and lots of different parties are being blamed for this nonsense. But I feel that people are missing the point.
In every single instance, the legal profession is first asked for advice, and subsequently it is the legal profession that implements the action. In each of these cases, they gave the wrong advice and implemented the wrong action. This seems to be happening with ever increasing frequency. Why might this be?
Well, I can think of only two possible explanations. The first one is that lawyers are totally clueless. Now, despite every indication that this is the case, I think it is unlikely, merely because the educational requirements are likely to weed out the total morons. The alternative explanation is that lawyers are totally amoral and self-serving, that they see the Internet as a fantastic opportunity for creating new work for themselves, and that they do so with complete disregard for commonsense despite being intelligent enough to know exactly the nature of what they are doing.
Are there any other possible explanations?
"The question of whether machines can think is no more interesting than [] whether submarines can swim" - Dijkstra
Why is this big news when this place is sued but not when Auction Watch was sued for doing the same thing? The reason eBay did this was because of the unnecessary strain on the servers. The reason the other sites(Auction Rover and others) weren't sued is that they agreed to a solution that basically let them index a backup copy, which meant it was about an hour or so behind but didn't place a strain on eBay's servers. Think of the slashdot effect continuously happening and you've got the kind of traffic these indexes would give on a regular basis! Why should eBay have to pay for someone else's indexing?
This thing of coming up with straw men for these situations is harder than I thought. Here's why:
:-) It would have to require strong decryption to be heard, of course.
1) The internet itself is the original and best straw man for free speech, as demonstrated by the proliferation of cases like this.
2) Much of the uniqueness of the internet from a legal perspective is the lack of both editorial and viewer control. This means that good straw man cases would require an ISP that will take the case as far as necessary if its rights are challenged, PLUS a separate publisher that can also fight all the way, PLUS an also-separate readership that can fight all the way. Why separate? Because otherwise, the court might place editorial/viewership control responsibility on the defendants (i.e. they'd say: If ISP X put up the page, it is liable, and can't be considered an infrastructure provider only, and if Publisher Y is recruiting a community of readers into an activity, it is liable, and can't be considered merely a conduit of illegally-obtained information.)
3) The unfair-competition aspects of IP abuse can only be challenged by an entity with a real financial stake in the outcome of the case, and no one wants to take that risk.
Nonetheless, there are some actions that could be taken:
A brave, well-heeled, liberty-loving organization could set up a perfectly-anonymous ISP. It would explicitly refuse to track identity, usage or cross-references of publishers or readers, and refuse to control content or access. It would also not profit in any way from its use or access.
If properly advertised and organized, it wouldn't take long for this ISP to contain all sorts of material that would *scream* to the courts its need for protection and access-- whistleblowers' internal docs from corps and govs, anonymous testimonials of wrongdoing, independent investigative journalism, political screeds on various topics, non-mainstream art and literature, etc. And it would also be sure to attract lawsuits by those who didn't like what was being said.
If the brave organization takes these suits all the way to the Supreme Court, a hopeful conclusion would go something like: "If this ISP is restricted in any one of the requested ways, the whole capability to provide and access the protected material is seriously impinged. If any of this stuff deserves to be protected, it all does. If any of the means of disseminating this speech need to be protected, they all do."
Other related actions could include encouragement to publish material of the type most commonly challenged. A "Worldwide Blow the Whistle on Your Company Day", or some such thing, to centralize, and provide a safe harbor for, challenged material. Again, a brave organization could sponsor or host.
The ban on copying devices in DMCA could easily be straw-manned by using such a device as the only/simplest/best means of distribution for some protected speech. Anyone care to cut a "Repeal the DMCA" album on MP3?
I'm not sure how to deal with software patents other than one at a time (again, our brave organization could make a living out of taking these down, as NAACP did with Jim Crow laws). Somewhere in that morass, we may find a patent whose result is that previously-protected speech or competition is curtailed in a way that implies all software patents could do the same.
Finally, to cut off the "we'll just scare others off by getting an injunction against these poor saps" suit, the above safe-harbor strategy could help: create a site or ISP with mixed political expression and challenged material, and create a way that they depend on each other for readership, and the courts would be hard-pressed to create rules that remove one without suppressing the other.
Now to find some brave organizations... ACLU, EFF, Public Citizen, who else?
"You can't get something for nothing." - my grandfather, on the stock market and Reaganomics.
Without all these bastard corporations trying to use the internet to make money and then, to their surprise, realizing their website isn't exactly the same as a billboard on their roof, we wouldn't have all these idiotic legal battles. Companies JUST DONT GET IT. They don't understand how the Internet works, why it's popular, why it's so beautiful and so popular. To them, then internet (although, really, all they pay attention to is the web...) if just a piece of real estate to build a little shop on.
Devilled Eggs - A disturbing little creation of mine.
If eBay (or Ticketmaster, or insert-name-of-company-suing-over-deep-linking) spent half a day writing a routine to have its pageserving routines combine a cookie check with a check for a valid referer URL, they'd be able to block deep linking altogether.
Yes, referers are forgeable, but if you check to see that a referer contains something that, say, matches a user-level cookie, the indexers would be able to index all they want, but they wouldn't be able to link anyone to anything.
The fact is, eBay wants people do deep-link: they want users to be able to send each other links to items, which this would preclude. They just don't want anyone to make a compelling business of it.
Sorry, eBay. Unless you want to start distributing special client software, you're going to have to choose between allowing deep linking for everyone or for no one at all. If the courts fail to see this, there are some judges who need to go back to law school.
Just reading the article, but here are some thoughts that strike me...
The price, quantity, and bidding data on its site are unique, eBay says, adding that no other Web site can display this information without eBay's permission.
Hmm.... So, on the strange offchance that some other auction site has the same price and quantity of an item (identical bidding data is too remote to even consider!), they could in theory be sued by E-Bay?
Robots.txt file - If E-Bay doesn't have one, then I don't see how they can complain about search engines indexing their site. If they don't want that to happen, create one.
Finally, E-Bay owning the content on their site. I believe someone mentioned this. But I don't see how they can own some types of content (they own the price $3.99 in relation to item X?), especially that copywritten by other companies, like product names or images. (Note that, to avoid flames, I am not saying copyright is good or bad. Just that it is.)
Standard Note: This is my point of view. I do not pretend to be fully informed on all the issues involved, since IANAL and have gotten all my information from Slashdot comments and a news article. :-) Also note that my examples are just that, examples, and probably have no basis in the real world.
-RickHunter
--"We are gray. We stand between the candle and the star."
--Gray council, Babylon 5.
i haven't gone and checked out either sites, and whether they are linking/indexing or having copies of the info from ebay (which of course WOULD be subject to copyright infringement). if they are merely linking, then we need to examine the concept of linking and what it really means.
imho, a site linking information to other sites is no different than a person refering other people to various information that they may have found out one way or another. if linking is illegal, then it must be said that it will also be illegal for me to tell you that KMart sells CDs cheaper than another competing store.
Um excuse me, I used to sysadmin a mail domain
and got hit my a spammer. This was before antispam and relaying denied filters were common on sendmail servers.
The performance problem was Real, the spammer was attempting to send 10's of thousands of emails an hour though my server. Then there were the thousands of messages bouncing back due to bogus addresses in the spammers mailing list.
This was clogging up out internet link (which was only 128KB at the time). Sendmail was queueing messages and verifying each address as it sent it, resulting in a mail queue that completely filled the disk space on my server which effectively took the whole thing down. It also prevented all our genuine mail from being delivered because it as backlogged behind the spam, including important emails from our clients. Also people were getting slow access to our web server because of the spam flowing back and forth clogging our link.
In total it wasted probably 20 hours of my time cleaning up the mess and implementing anti-spam filters... plus potentially lost messages, damage to our reputation etc etc
As anyother sendmail admin would tell you spammers can cause very real performance problems.
many suits have gone too far, and its all the people who have to do with the systems for not stopping it.
Generalizations don't help. Not all lawyers are bad, not all lawyers are totally incompetent vis-a-vis the Internet. I'm a law clerk with the Electronic Privacy Information Center. I daresay most of the /. community that is aware of our work approves of it. The real process here is that lawyers have to keep their jobs. This is probably the brain child of some corporate lawyer who has been told to stop this particular deep-linking case. If he doesn't, he'll be fired. So he comes up with a pretty bogus suit and it makes the papers. The lawyer is culpable, but 1) he'd be fired if he didn't find a way to sue these people for deeplinking and 2) his replacement will file the suit anyway. Rational conclusion? File the bad suit. I agree that there are many, many bad suits out there that are the result of the over-commercialization of the Internet. Commercial interests are on the 'Net and they are attempting to expand their rights. Some lawyers work for companies. Some companies are on the Net, and want to exert undue influence on the 'Net. Those lawyers are going to be the ones to file the suits trying to enforce undue "rights." The people who suffer are generally disorganized and (comparatively) poor. They don't get lawyers to defend their rights. That sucks, but does it necessarily lead to all lawyers are immoral? In truth, this suit is really lousy. Feist v. Rural Publications limits copyrightable subject matter: 1) Facts are copyrightable 2) Collections of facts are only copyrightable to the extent that their selection and arrangement is original 3) Selections dictated by necessity aren't original. In Feist, the copyrighted work at issue was a phone book with the name of everyone who wanted phone service. Here, the listing is everyone who wants to sell something. 4) Arrangement dictated by the eBay categories MIGHT qualify as original, but certainly not by time left in auction. Feist found alphabetization uncopyrightable, duration remaining is even more automatic. 4) The copyright of the individual ads belong, obviously, to the individual sellers. SO, yeah this is a bad suit. It is interference with competition. There should be a remedy for the defendants. There probably is
But is this tresspass ?
The search engine has asked the eBay server for a page ( or pages ) and these have been sent back.
The search engine has not 'entered' the server, and access has not been granted. If eBay want to protect the site then why don't they refuse access to redirects from specific sites or just refuse redirects full stop.
I know this would be a blow to their business, but you have to be straight about things like this. If you want the privacy afforded by required registration and password protection, then implement and enforce it - the technology is there and if you have the ability to create an online bidding site, they you have the ability to password protect it from unauthorised access. Then you can claim unauthorised access. You can't claim unauthorised access (trespass) without having at least designed a system that attempts to enforce it - and I don't mean a wordly legal disclaimer at the bottom of each page.
I really hope eBay lose this one - not through any dislike of them - they're web pioneers and I respect that - but because I think that in this case, they aren't playing fair.
Salocin.com
Why? simple.. I can go into a shop and write down each and every article they have for my 'guide of useful things and where to buy them'. Thios is perfectly legal even though I am taking up their precious square meters for which they paid a lot of money. Exactly the same as the whole ebay shit. Businesses should stop whining.
//rdj
No one can understand the truth until he drinks of coffee's frothy goodness.
--Sheikh Abd-Al-Kadir, 1587
>The search engine has not 'entered' the server,
Neither did the dynamite in the blasting cases I mentioned. It caused an an action on the property of another, affecting that property. Causing the head in the disk drive to move is more than sufficient to fill the elements of trespass. Moving electrons as bits flip is probably also enough.
> and access has not been granted.
They *took* the access. Yes, the web is set up to allow this, but they had actual notice of lack of permission.
>If eBay want to protect the site then why don't
>they refuse access to redirects from specific >sites or just refuse redirects full stop.
They could do that, though it takes resources to play the cat & mouse game that follows. But they don't have to under current law.