Now Available At Your Local Flea Market: Safe Harbors

from the do-your-own-policing dept

Online marketplaces like eBay have a bit of protection from liability if their platforms are used to sell counterfeit or copyrighted goods. However, in the offline world, flea markets have historically not been granted the same type of protection, as seen in Fonovisa v. Cherry Auctions (1996), where flea markets were found to be liable for selling infringing works.

But now, the same protections afforded to online marketplaces could now be coming to their offline counterparts. Texas judge Lynn Hughes has dismissed the case Sony Discos Inc. v. EJC Family Partnership, where Sony Music sued a flea market operator, Elwin J. Cole, for copyrighted goods being sold at the market. Sony alleged that EJC was guilty of contributory infringement by allowing its sellers to sell copyrighted goods in the market. The judge disagreed, ruling that it was not EJC's responsibility to police the market for Sony (full ruling here - pdf):

Sony does not argue and cannot show that Cole aided or enhanced infringing sales specifically, in a manner distinct from Cole's facilitation of all sales at the flea market.

...Cole is not akin to the driver of a get-away car; he is closer to the service station manager who sells the bank-robber gasoline.

So, perhaps driven by the safe harbors enjoyed by their online counterparts, offline flea markets are no longer to be held responsible for infringing uses of their marketplaces. If infringement happens, then it's reasonable for the owners to go after those specifically responsible -- it's inefficient and unfair to expect a marketplace to do the police work, especially when there are tons of non-infringing sales happening all of the time.

Filed Under: flea markets, liability, safe harbors, secondary liability

Tiffany Still Confused About How Liability Works; Appeals eBay Decision

from the let's-try-this-again dept

Last month a US court correctly pointed out that eBay was not liable for counterfeit products showing up on the auction site. That doesn't mean that it's legal to sell counterfeit products, just that eBay isn't liable for the counterfeits showing up there. Instead, it should be the person who actually lists the item that's liable. That makes perfect common sense. Except to Tiffany, apparently.

The company is now appealing the ruling, making some bizarre arguments in its own defense:

"If one were a flea market operator and you become aware that counterfeiting is going on with the individual sellers at the flea market, you have a duty to investigate it. Why is eBay any different from that analogy?"

Well, two things, actually. First, it's the individual seller in that situation that's liable, not the flea market operator, and much more importantly, eBay is quite different than a typical flea market in that it doesn't pre-vet any of the sellers. A traditional flea market involves the flea market operator finding sellers. eBay is just a platform where anyone can sell. That is, eBay has simply no knowledge of what anyone is selling on the site -- nor should it be required to. The law is pretty clear on this, so it's not at all clear what Tiffany thinks it's going to accomplish here other than to waste a lot of money on lawyers who seem to be giving the company really bad advice.

Filed Under: auctions, flea markets, liability, section 230
Companies: ebay, tiffany