eBay To Let Governments Pull Down Listings Automatically; What Could Possibly Go Wrong?

from the have-you-seen-who-we've-elected-lately? dept

One common theme we've seen for ages in the various content moderation debates are that those who think that governments should be able to determine what content stays up and what content needs to come down don't seem to recognize who various government leaders around the world are these days. Governments have an unfortunate track record of trying to pull down content that embarrasses themselves. And yet, for reasons unknown, eBay has decided that it is going to let government regulators automatically remove listings on the auction site.

This latest move, eBay said, was designed to speed up the removal of "illegal or unsafe items" without waiting for approval from the company.

Only selected, trusted authorities will have access to the new tools. But those that do will have "the ability to take down any listings from the marketplace themselves", the company said.

More than 50 authorities around the world are already involved in the early stages of the project, it added.

Now, admittedly, removing products for sale may be a bit different than removing content. And, there are plenty of stories about "unsafe" or counterfeit goods listed on these sites (though, in the past we've noted how the moral panic stories about such listings tend to be massively exaggerated). It's also not at all clear that government agencies are going to be able to properly recognize when a product is "unsafe" or "illegal."

In the US, for example, we've certainly seen Homeland Security seize products claiming they were "unsafe" when they really just seemed to be... competitive with a bigger company's offerings.

Similarly, giving anyone outside of the company direct control to pull down other people's content has been fraught with problems. Over and over again we've seen such "trusted flagger" programs fail spectacularly, even with supposedly larger organizations that should know better.

And, of course, even when it comes to things like auctions, governments may have extremely different ideas of what counts as "unsafe" or "illegal" than the platforms do. It's ancient history in internet time, but some of us still remember that France charged Yahoo's then CEO as a war criminal because Yahoo's own auction site in the early 2000s had some Nazi merchandise for sale. Yes, obviously in some countries Nazi paraphernalia is illegal to sell. But do we really think governments should be able to just reach into a platform, without review, without due process, and pull down those listings?

As Stanford's Daphne Keller notes, this seems like we're careening at high speed down the slippery slope towards governments directly deciding what remains up and what gets taken down, with little (or no!) consideration of the users' own interests.

Filed Under: auctions, counterfeits, governments, safety, takedowns, trusted flaggers, unsafe items
Companies: ebay

Stupid Patent of the Month: Who Wants to Buy Teamwork From Penn State?

from the story-building-involves-patenting dept

Ever wanted to own the latest in “teamwork” technology? Well, you’re in luck. On December 8, Penn State is holding a large patent auction, and one of the items is U.S. Patent 8,442,839. This patent purports to describe an improved collaborative “decision-making process.” As well as being a good example of a silly patent, this month’s winner highlights concerns with universities trying to monetize their patent portfolio. Why would a university, which presumably has a mission of promoting knowledge and innovation, sell an unsuccessful patent that has no value except to a troll?

First, a little background. In April this year, Penn State held its first patent auction. It offered exclusive licenses to dozens of patents but only received a single bid (meaning that it likely didn’t even recover the cost of holding the auction). This is consistent with experience at other schools. Evidence shows that the vast majority of technology transfer offices lose money for their university. Selling old patents brings universities little revenue but risks contributing to the wider economic harm from patent trolling. Indeed, over 60 universities (paywall) have sold patents to infamous patent troll Intellectual Ventures.

Many, including EFF, have expressed concerns with universities selling to patent trolls. To its credit, Penn State says that it does not want to foster patent trolling. And it has included some licensing terms that will discourage trolls from buying its patents (including a six month bar on filing infringement actions). But it is difficult to see how a patent like U.S. Patent 8,442,839 would have value to anyone but a troll.

The patent, titled “Agent-based collaborative recognition-primed decision-making,” includes a single independent claim. Steps include “receiving information regarding a current situation to be analyzed,” interacting to receive “assistance in the form of assumptions or expectancies about the situation,” and using “collected information to determine whether a decision about the situation is evolving in an anticipated direction.”

The patent reads a little like what might result if you ate a dictionary filled with buzzwords and drank a bottle of tequila. A typical passage explains:

Story building also involves information gathering, but it is more than cue-driven information investigation, because the agents are still unclear about what cues to investigate. Therefore, the key is to identify a collection of cues which the team needs to pay attention to. Our model adopts a combination of two mechanisms: hypothesis exploration and experience synthesization.

In other words: learn from experience. The patent examiner originally rejected the application as not directed to patentable subject matter. Penn State responded by amending its claim to “include a team-oriented computer architecture that transforms subject matter.” In other words, it took an abstract patent and said, “Do it on a computer.”

Fortunately, the Supreme Court has put a stop to this kind of nonsense. We think Penn State’s patent would be found invalid under Alice v. CLS Bank. But even invalid patents have value to patent trolls. This is because they can use the cost of litigation to extort settlements. Indeed when patent trolls are actually forced to litigate to the merits, they lose over 75% of the time.

We urge Penn State and all universities to be more responsible. Instead of selling patents that have little value except as litigation weapons, universities should focus on true technology transfer—partnering with others to bring new technologies into the world. And universities should end their opposition to patent reform. We have a petition calling on universities to support patent reform here. Sign it now!

Reposted from EFF's Stupid Patent of the Month series

Filed Under: auctions, patent trolling, patents, teamwork
Companies: penn state

Teenager Pays Hundreds Of Dollars For A Picture Of An Xbox One

from the worth-a-thousand-words? dept

In prep for writing this short piece, I was surprised to learn that apparently eBay sellers sending pictures of items, rather than the items themselves, to buyers was something that existed. It's obviously a shady sense of humor that thinks bilking buyers out of their money this way is funny. I guess there are lots of ways it can happen, between ambiguously worded sell posts and incomplete reading by buyers. I imagine the latter is often fueled by a newly released item that is in high demand.

Such would seem to be the case with an English teenager who found out he'd paid hundreds of dollars for a picture of a new Xbox One, rather than for the console itself.

Peter Clatworthy thought he had bought one of the consoles on the auction site, but actually received a picture of one. The Post highlighted his story today, with Mr Clatworthy having now received a refund with the help of eBay.

Well, good on eBay for doing the refund, but this wasn't just a simple matter of a jackass seller sending the picture when he or she had promised the console. The actual seller listing did indeed promise a picture, not a console.

Despite the listing stating it was a photo of an XBox One Day One edition console, Mr Clatworthy said he’d expected to receive the console as it was listed in the video games and consoles category on eBay.

He instead received the photo in the post on Monday, with it having ‘thank you for your purchase’ written on the back.

I imagine somebody did the listing as a joke and then found out someone had purchased it after obviously not reading the listing carefully. That doesn't absolve the seller from completing the purchase process, obviously, but it does serve as a warning for all of us during this holiday shopping season. Read what you're buying, people.

Filed Under: auctions, peter clatworthy, photograph, scams, xbox one
Companies: ebay

Class Action Lawsuit Filed Against eBay Because Of The Way Its Auctions Work

from the oh-come-on dept

It seems you can find people to file a class action lawsuit against just about any crazy thing these days. The latest, as pointed out by Eric Goldman (with the complaint embedded below), is someone filing a class action lawsuit against eBay claiming all sorts of violations for the way eBay's auction system has always worked. Here's the basic issue. eBay developed a rather clever system back when it launched to handle bidding. You don't just put in your next bid -- you put in what's supposed to be the maximum you're willing to bid on an item. But the auction system itself always goes for the highest bidder's lowest increment above the second highest bidder. If that sounds confusing, let's take the language from eBay's own site, and quoted in the lawsuit:

1. The current bid for an item is $10.00. Tom is the high bidder, and has placed a maximum bid of $12.00 on the item. His maximum bid is kept confidential from other members.
2. Laura views the item and places a maximum bid of $15.00. Laura becomes the high bidder.
3. Tom�s bid is incremented to his maximum of $12.00. Laura�s bid is now $12.50.
4. We send Tom an email that he has been outbid. If he doesn�t raise his maximum bid, Laura wins the item.

This is how eBay has always worked. And it's a perfectly reasonable business model choice that eBay did because it makes life much more convenient for users. Rather than having to put in place each bid, you can set the most you're willing to pay and rest assured that you'll just have to pay the next increment above the second highest bid. Of course, in practice, the bidding rarely works that way, with people often feeling pressure to raise their highest bid, or wait until the very end to snipe the bid. But, overall what could possibly be the problem with this system?

Well, according to the lawsuit, this all seems to be a conspiracy to defraud the seller of the full $15 that Laura bid. The fact that she only pays $12.50 is apparently due to eBay failing to "act neutrally" and instead "inject[ing] itself into the transaction by intercepting the bid aamount [sic] before it is received by the seller." Seriously.

Once again, this is how eBay has worked forever, and it's pretty clearly explained on the site. It's a business model choice that makes plenty of sense. It's not some breach of contract, or "tortious interference" or "unfair competition" or "unjust enrichment." It's just a business model. In fact, if eBay were really being nefarious, wouldn't it set things up the other way? After all, since eBay gets fees as a percentage of the sale price, if the company were really being sneaky, it would try to force everyone to pay the higher bid. If anything, it seems like eBay's structure is designed to help people, not to unjustly enrich itself...

Filed Under: auctions, automatic bidding, business models, class action
Companies: ebay

Class Action Lawsuit Filed Against Coach Over Bogus Takedowns, Trademark Bullying

from the nicely-done dept

We've seen so many cases of trademark bullying, and it's so rare to see people fight back, that it's interesting to see it happening -- and even more surprising to see it done as a class action suit. Eric Goldman points us to the news that this class action lawsuit has been filed against luxury goods maker, Coach, for apparently issuing takedowns to eBay for perfectly legitimate second-hand sales, while also threatening those who put up those items. I'll let the lawsuit itself (the full filing is embedded below) explain the basics:

Without investigating the validity of its allegations, Coach wantonly accuses consumers of infringing its trademarks by selling counterfeit Coach products. Coach apparently monitors online retailers such as E-Bay, looking for ads from consumers selling second hand Coach products. In response to such ads, Coach delegates a New York law firm to launch a threatening letter to the consumer. These letters accuse the consumer of trademark infringement, threaten legal action, and demand the immediate payment of damages to Coach in "settlement" of Coach's threats. At the same time, Coach (or its New York law firm) informs the online retailer that infringing merchandise is being sold on its website. In many cases, this causes the online retailer to involuntarily remove the allegedly infringing ad, and to disable the consumer's online account. This destroys any chance the consumer had to sell the Coach product second hand, and otherwise damages the consumer.

In many cases (such as that of the lead plaintiff identified here), Coach's allegations of infringement are flatly false. It appears that Coach fails to conduct even a minimally reasonable investigation into its counterfeiting claims before threatening legal action. For example, the lead plaintiff identified in this Complaint is a former Coach employee, who owned, and tried to sell, genuine and legitimate Coach products It was entirely legal for her to do so. Coach's threats against her were false, reckless, and unwarranted.

We've definitely seen attempts to use trademark law to block the legitimate sale of secondhand goods. It's a bad trend that needs to be stopped, and hopefully lawsuits like this might do the trick. Unfortunately, in the past few years, we've seen some really underhanded tricks used by producers to effectively block secondhand sales and first sale rights through legal trickery. It's not clear if that kind of defense will be used here.

The lawsuit itself wants a declaratory judgment that selling legitimate Coach goods secondhand does not infringe... but also includes a defamation claim, pointing out that accusing someone of infringement when it's not true could be seen as libelous. That part seems like a stretch, but I'll be curious to see how the court rules.

Filed Under: auctions, trademark, trademark bullying
Companies: coach, ebay

Yahoo Happily Admits It Manipulates Ad Auctions To Get Advertisers To Bid More

from the that-doesn't-sound-legal dept

Sometimes you wonder if executives realize what they're saying before opening their mouths at times. In an interview with TheRegister, Yahoo's chief economist appears to happily admit to manipulating ad auction results in order to force advertisers to bid more:

"When someone has a really high ad click probability, they're very hard to beat, so it's not a really competitive auction," McAfee told The Reg. "So that they don't just win [every auction], we do squashing. This makes the auction more competitive.

"It's like handicapping. We handicap the people with the high click probability."

This, McAfee said, can increase Yahoo!'s revenues. "The bidders respond by bidding higher. The one who was destined to lose is now back in the race, so they bid higher trying to displace the number one, and the number one is trying to fend them off so they bid higher too.

"We can make the competition a bit more fierce using squashing, even on keywords where there's not much bidding."

While that may seem like a neat trick from an economics standpoint, it certainly seems like a pretty questionable business practice from an advertisers' standpoint. Having a company secretly manipulate the results of an auction to make participants pay more? That sounds like fraud. As Eric Goldman notes, this appears to be a lawsuit waiting to happen.

Filed Under: ads, auctions, manipulation, squashing
Companies: yahoo

French Courts Continue To Penalize eBay For Actions Of Users

from the bad-news dept

While more and more courts seem to be understanding that eBay shouldn't be responsible for what users are selling on its site, it appears that French courts are a bit confused. Last year, a French court fined eBay $63 million because counterfeit LVMH products were being sold on the site. Of course, eBay has no way of knowing what's legit and what's not, but the French court didn't seem to care. A similar case, also involving LVMH, but concerning Google ads, was also ruled in LVMH's favor, but it was appealed to the European Court of Justice, and a judge there has already indicated that it makes little sense to blame the company. But that isn't stopping the French courts. eBay has now been fined yet again, because of a French ban on selling even legally purchased brands of LVMH perfumes if you're not an authorized distributor. eBay is appealing the ruling, saying that banning the resale of legally purchased goods doesn't make sense and harms consumers. However, a much bigger question is why eBay should be liable at all. It's not eBay doing the selling, but users on the site.

Filed Under: auctions, fines, france, liability, trademarks, users
Companies: ebay, lvmh

Nanda's Alarm Clock Not Only Runs Away From You, It Runs Away From eBay Too

from the wake-up-nanda dept

It looks like more tangible product companies are trying to pretend they can restrict what you do with legally purchased products post-sale (perhaps they're jealous of content companies). Case in point: my brother received the Nanda Clocky as a gift awhile back -- it's a pretty novel alarm clock, when it goes off, its wheels turn on, and it jumps off your dresser, forcing you to climb out of bed to turn it off. Since he already had an alarm clock that worked for him, he decided to sell it on eBay. A few days before his auction was supposed to close, he got a notice that his listing was removed for a "Trademark Violation - Unauthorized Item." Yes, for a legitimately owned product. The email stated:

"Nanda Home Inc. is the owner of the intellectual property rights pertaining to these listings. By listing the 'Clocky' product you are in serious violation of the company's rights. Additionally, Nanda Home does not permit the re-sale of any of their brand product on eBay. There are no authorized Nanda Home re-sellers on eBay. If you continue to list our items, further legal action may be taken."

Clearly, Nanda has a gross misunderstanding of the right of people to re-sell their own property. While it's true that it is against the law to sell counterfeit copies of a product, re-selling your own goods and representing them as "real" is completely within the bounds of the law, and eBay policy. To make matters worse, the condescending tone of the email also suggests that:

"You may need to take a tutorial. The next time you sell, you may be asked to take the tutorial, if it's required. Once you've completed the tutorial successfully, please review your account status for any other possible concerns. If there are no other issues, you should be able to sell again."

Or, perhaps Nanda and eBay should take a tutorial on the right of first sale. In the aforementioned tutorial, eBay clearly understands the right to re-sell (in fact, a huge part of its business relies upon this fact). Yet, to make matters worse under eBay policy it's still a laborious process to get the item relisted -- even with the bogus takedown notice. As a seller of an incorrectly taken down Clocky listing, you have to contact Nanda and have them specifically authorize your product to be re-listed. Yes, even though it's Nanda who issued the incorrect takedown in the first place. So much for frictionless commerce.

The even bigger problem is in the process in which such listing takedowns are handled. Under the guise of rooting out counterfeit products, Nanda is able to unfairly reduce the number of its own secondhand goods in the marketplace. Other manufacturers have tried to do this in the past for everything from shampoo to radar detectors. And, much like the DMCA process, this "guilty until proven innocent" approach ultimately hurts the consumer, who now has unfairly reduced access to many products that were to be sold completely legally.

That said, my brother followed the eBay process to get his Clocky relisted. They sent him an email apologizing for their error and authorizing him to relist, which he did. Guess what? In an effort to punctuate how ridiculous this policy is, one day later, he got an email, "Trademark Violation - Unauthorized Item."

Anyone want to buy a Clocky?

Filed Under: alarm clock, auctions, clocky, first sale, trademark
Companies: ebay, nanda

Using Creative Fiction To Increase Value Of Trinkets On eBay

from the using-infinite-goods... dept

When we talk about understanding how to embrace the economics of infinite goods, one of the key points I've tried to make is that every product is a bundle of scarce and infinite goods. That's a point that some people have a lot of trouble with at times, insisting that some people who create infinite goods have no scarcities to sell... and, conversely, that those who make scarce goods, sometimes have no infinite goods to give away with them. While it may be a bit more complicated to separate out the scarce and infinite goods, it doesn't mean they don't exist.

Parker writes in to point out a fascinating example. Apparently a group of fiction writers are experimenting with selling physical goods on eBay with fictional stories given away "free" in the description. The project is called Significant Objects, and involves a bunch of fiction writers purchasing random trinkets, and then coming up with a neat story to go with them. The post at io9 notes that some stories seem better than others at increasing the auction bids, but points out that: "If Rosenfeld's success is any indication, these authors may actually get paid more for short fiction on eBay than they would at most publications."

Again, some will incorrectly claim that we're saying that fiction writers should start selling crap on eBay, but that's not it at all. This is just one (fun) example of many of content creators smartly using infinite goods (the stories) to make a scarce good (the trinket) more valuable, and putting in place a business model to profit from it. Once again, we learn that creativity knows no bounds, not just in creating content, but in playing around with new business models.

Filed Under: auctions, business models, fiction, infinite goods, scarce goods, significant objects, trinkets, writers
Companies: ebay