Software Industry Assocation About To Learn What Safe Harbors Mean
from the if-you-want-to-waste-your-money,-go-right-ahead... dept
It appears that the Software and Information Industry Association (SIIA) is about to learn what DMCA safe harbors mean. The group is apparently upset about the fact that some people sell counterfeit software on eBay. That's not surprising. But, the SIIA is planning to sue eBay for this activity, rather than going after the counterfeiters themselves. Of course, if anyone from the SIIA had been paying attention, they would know that courts in the US have repeatedly found that eBay and sites like it are protected by various safe harbor provisions. This is for a very good reason: it's not eBay counterfeiting anything. eBay is merely the platform. If the SIIA wants to go after the actual counterfeiters, that's their issue. But going after eBay for providing the platform is going to fail miserably. You would think that a trade group that claims they cover the "Information Industry" would know that already.
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Filed Under: auctions, copyright, counterfeits, dmca, liability, safe harbors, siia
Companies: ebay, siia
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Re:
Yes, the DMCA safe harbors are somewhat different than the CDA's safe harbors, but it's VERY unlikely that you could come up with a way in which eBay is actually guilty of contributory infringement here. At least not without being incredibly intellectually dishonest.
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Re: Re:
The talk about "considering a lawsuit" is quite likely meraly posturing to move the ongoing discussion along to a mutually satisfactory conclusion.
Apparently the discussions are having some effect. At this point in time it appears that the auctions at eBay have been reduced to bring such auctions more in line with current law. This is beneficial to eBay's position and is one of the reasons I happen to believe that a lawsuit at this juncture is merely talk and not a call to arms by the SIIA.
Just an observation you may wish to consider, the title of the article is in my opinion pejorative and can be viewed as exhibiting a bias against rights holders.
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Re: Re: Re:
should be
merely
???
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Re:
eBay won similiar cases in America.
If SIIA plans to sue in America, they are stupid and Mike is correct.
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*****Begin quote*****
Kuperfschmid thinks that any SIIA lawsuit would be taking a different approach, perhaps relying more on copyright law than trademark law, which had been Tiffany's strategy. (Tiffany's lawyers said last week that their client was likely to appeal.)
"The standards are somewhat different under copyright than trademark law," Kuperfschmid said. "If you look in the statute under the DMCA (Digital Millennium Copyright Act), it does have a standard for determining when eBay may or may not be liable," Kuperfschmid said.
And if courts eventually rule that the DMCA doesn't force eBay to be the kind of Net-cop that the SIIA might like, there's always one remaining option: rewrite the law.
*****End quote*****
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Fonovisa v. Cherry Auction will be important in this one...
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Re: Fonovisa v. Cherry Auction will be important in this one...
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EBAY is flipping out over legit software
The idea is to drive the marginal folks off with the pirates apparently.
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Re: EBAY is flipping out over legit software
I've started buying from Amazon since I can get pretty much anything I want without dealing with scammy listings by sellers, and usually at FAR better prices. Ebay's time is up.
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An Open Source Solution
Google Summer of Code has certain biases built into it-- it tends to favor a reasonably established open source project which can provide mentors, and which wants someone to add a real specific feature, such as a file conversion utility. In effect, Summer of Code sets up a summer job as a kind of sponsored bachelor's thesis. This seems to have its limits for improving certain kinds of programs, such as GIMP, where exemplary users, such as people with MFA's, think in very different ways than software developers do, and have difficulty in conveying their requirements in terms which a software developer can understand. Perhaps E-Bay could fund things like usability studies. For example, they might pay lots and lots of art students to spend two weeks participating in a study. That would need to be set up through an art school department, so as to avoid selecting atypical artists who were unusually comfortable with programming or advanced computer usage. The output of the project would be published reports explaining in engineer's language what you need to do to make a Photoshop killer.
Something similar could be done for AutoCad and the architect market. In other cases, where software patents are an issue (patented user file formats or user interfaces), E-Bay could sponsor patent challenges. The idea, in one form or another, would be to tap into whole groups of people who would not be eligible for Google Summer of Code.
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I don't know...
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A waste of more than money
I think this subtitle is a little misleading. Not only will the SIIA be wasting its own money, but it'll be wasting eBay's money and time and it'll be wasting the court's time.
Maybe this case is different than all the other cases of Company X vs. eBay, but like Mike says, shouldn't the company go after the individuals? That's just silly- why sue individuals when they don't have deep pockets like eBay.
Plus, I wonder if the SIIA is truly in this case to win, or if they'll be happy with an out-of-court settlement, which of course, they'll get millions of dollars and announce the fact that they "won".
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