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Judge: eBay Not Liable For Bootleg Recordings 81

Posted by Hemos from the interesting-twist-on-the-cda dept.
Millennium writes: "San Francisco Superior Court Judge Stuart Pollack has ruled that eBay is not liable for bootleg music sold on its site. The interesting thing about this ruling: Judge Pollack based his opinion on the CDA, of all things."
This discussion has been archived. No new comments can be posted.

Judge: eBay Not Liable for Bootleg Recordings More

Judge: eBay Not Liable for Bootleg Recordings

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  • Okay...so I want to get a boot of a show, but I have nothing to trade. How do I get the boot?
    Do I buy a bootleg so I have something to offer?
    What if someone who has a bootleg I want doesn't want anything I have?

    That's what I love about Napster. I could care less that I can go get someones new album that I didn't care about anyway. What I like is that I can finally fill in all those missing pieces from various Rush bootlegs off Usenet.

    BTW, since I pay for my usenet access, and am downloading bootlegs, is it good karma for the usenet provider to make money off me? :)
  • In what district is the Napster case being decided? In what district will this eBay case be appealed (cuz we know it will)?

    East Coast, West Coast. Two different circuit courts, two completely different mindsets in the respective judiciaries.

    Two rulings on very similar cases that contradict each other: that's one of the tickets for Supreme Court review.

    Might this turn out to be a bad thing?

    I'm surprised the MPAA/RIAA aren't lobbying for whomever-the-next-Prez-is to appoint corporate-friendly SCotUS Justices, to forever ban Napster, Gnutella, DeCSS, linking to whatever we feel like, etc.


    Thus sprach DrQu+xum, SID=218745.
  • In the eyes of the RIAA, if you like a song, you must pay for it

    Wrong. In the eyes of the RIAA, if you like a song, you must buy the album.

  • I messed up the http://etree.org [etree.org] link in my last post.

    Here it is again: http://etree.org [etree.org].

  • The difference is that while on Napster yer trading copyrighted materials for free, over eBay you make a profit off it ;-)
  • I wonder how it got as far as it did. How would said fan even have standing to sue? Were these copies of bootlegs that he himself made?
  • blacklisting a FREE agent who has not signed with riaa?

    just what the hell are you talking about??

    --

  • no, but it is nice to see that someone with a *really* big cluestick finally got to a judge.

    I wonder if it hurt...
  • My thoughts exactly... Maybe there's hope for Napster afterall
  • Napster is a service providing the means to distribute unauthorised copies of music, made by and owned by record companies.

    [insert internet fencing site name here] is a service providing the means to distribute unauthorise recordings, made by individuals, but owned by bands.

    The significance is in who made the recording.

    --

  • I was wondering that myself, after I originally posted. Actually, saying that's true (this fan was the original taper, and that's why he sued), there's a much better way of dealing with it than the courts (especially for a Dead fan).

    If I were the guy who taped a show being sold, I'd check out the bid history, collect emails, and then send an email to everyone who bid, plus the guy selling, along the lines of "This is a show I taped; rather than spending your money on it, if you'll send me blanks & postage, I'd be happy to spin it for you. And I'm going to do the same for any other shows I have in my posession that I happen to see being auctioned."

    Of course, that might be against eBay policy (I doubt it -- he's not trying to undersell, he's trying to give away); but obviously Mr. Stoner doesn't think much of current eBay policy anyway.

  • Napster has no right to distribute music on major labels while eBay does. Since eBay has the right to sell used CD's that means that is is a legal service. That bootleg material makes it onto eBay is true, but it's hard to police what is bootleg material and what is not, since it is not eBay that puts the recordings for sale but individuals. This is what makes it different than a brick and mortar store. So the individual is the responsible one with the liability here. eBay has a stated policy against bootlegs and I dealt with someone there once, who told me that he had been kicked off eBay for selling duped video recordings of live concerts, so they do attempt to enforce it. Napster is much more intimately connected with it's dealings which have no legal basis. Perhaps they will get one someday but the court battles to sell used CD's give eBay a right to sell. I am not against Napster in any way but feel that it should be noted that these are not the same sort of dealings.

    "We're the hardest working band in the business, I don't care if we're the best" - Iggy Pop and the Stooges.

  • Re:Grateful Dead... (Score:3)

    by jms ( 11418 ) on Thursday November 09, 2000 @12:43PM (#634570)
    Yeah, and deadheads report those stores to the Dead's lawyers, who show up with law enforcement officer, confiscate all their infringing merchandise, and open a can of legal whoop-ass on the store. There's "hippy stores" that no longer exist because they tried to leech off the Dead by selling bootlegs.

    Why would Deadheads want to go out of their way to deliberately hurt record stores that sell bootlegs, and get bootlegs taken off the shelf and off of ebay?

    Consider this statement from Grateful Dead Merchandising, released 01/2000:

    The Grateful Dead and our managing organizations have long encouraged the purely non-commercial exchange of music taped at our concerts and those of our individual members. That a new medium of distribution has arisen - digital audio files being traded over the Internet - does not change our policy in this regard.

    Our stipulations regarding digital distribution are merely extensions of those long-standing principles and they are as follow:

    No commercial gain may be sought by websites offering digital files of our music, whether through advertising, exploiting databases compiled from their traffic, or any other means. All participants in such digital exchange acknowledge and respect the Copyrights of the performers, writers and publishers of the music.

    This notice should be clearly posted on all sites engaged in this activity.

    We reserve the ability to withdraw our sanction of non-commercial digital music should circumstances arise that compromise our ability to protect and steward the integrity of our work.

    As well they should. The Dead have allowed audience taping and tape tradring as a courtesy to their fans, with the only condition being that the music be not sold for profit. Their fans respect this, and have little tolerance or respect for those who don't.
  • Having something shot by concert staff does not mean the result is going to be watchable. I have a bootleg Wall concert by Pink Floyd from 1980. The video quality is rather good despite it's age, and doesn't have the degraded quaility found in nth generation dubs. The problem is that you really can't see anything during some parts. Most of the stage is very dark, and I guess that video camera technology was limited back then. Most of the time, all you see are fuzzy blobs. And this was made professionally, as you can tell when the lights are bright enough.

  • Ebay is allowed to sell pirated music in order to relieve Ebay of the task of checking every single auction they host to make sure the
    products are legitimate.

    Ebay is not allowed to sell ANY MS Software, also in order to relieve Ebay of the task of checking every single auction they host to make sure the
    products are legitimate.

    What would happen when MS goes into the music business?


    ---
  • Napster Client 2: What do you wish to bid for?
    Consumer: Metallica Enter Sandman
    Napster Client 2: What is your opening bid?
    Consumer: zero cents
    Napster Client 2: Going once, going twice, going three times. sold to user xxxx from user yyyy
    Consumer recieves one Metallica enter sandman.
  • as a deadhead and long time taper of their live shows, I can comment on this.

    the only time GD tapes are illegal is when they're sold for profit. the band has ALWAYS encouraged fans to tape and trade/enjoy their shows. the quote was something like once we're done with it [the show], its theirs [the tape].

    so trading is perfectly fine as long as there is NOT a profit incentive. but outright selling is definitely forbidden.

    so the notion here is: its NOT the way you got the music or the fact that there are live tapes in circulation; its whether you're trading for fun or for profit that's the rub.

    --

  • Perhaps you should read the WHOLE article instead of just the first paragraph.

    The litigation did not focus on copyright infringement, as has the Napster case. And it goes on to say In dismissing the suit, Pollak said he based his ruling on the Communications Decency Act, which forbids computer service providers for being punished for the speech of others.

    Of course... i still disagree with the moderator... but... that's not what these posts are for. If you want to bitch about that... e-mail cmdrtaco or whoever it says to in the FAQ
  • Ok, a lot of people are making comments about how it's ok to sell bootleg music, or bootleg software with this decision. It's not. In fact there is now more of a danger to the end seller than previously. When eBay was responsible, they were the ones who the businesses would sue (they've got the deep pockets) but if they suddenly can't sue eBay anymore, expect them to start suing the end sellers and buyers. This could get very ugly.

  • Illegal *sale*, not recording (Score:5)

    by tapin ( 157076 ) on Thursday November 09, 2000 @07:29AM (#634577)
    In a ruling late Tuesday, Superior Court Judge Stuart Pollak in San Francisco County dismissed a lawsuit brought by a Grateful Dead fan who sought to stop sales of illegal concert recordings of the band...

    Seeing as the band the article is talking about is the Dead, I have a feeling the author screwed that up slightly -- it should probably read: ...who sought to stop illegal sales of concert recordings of the band.

    No taper I've ever met has worried about "illegally" recording a band that allows taping at their shows. However, many of the tapers I know get downright pissed when someone sells live recordings -- their reasoning being, the band should be profiting off the music (sound familiar?) and not the fan; trading is fine, but if the band sees people selling live recordings (not "bootlegs" -- these aren't unauthorized) they might decide that no one's allowed to legally tape at their shows anymore, and then the people who do it for the music are SOL.

    Personally, I'd never buy a live recording -- chances are, any show I'd be interested in getting (which probably wouldn't include any Dead shows, frankly) would be available for free by trading with someone who had better equipment at the show in question, anyway.

  • from the article:

    The litigation did not focus on copyright infringement, as has the Napster case. In that suit, the recording industry is suing the song-swapping service in federal court for allegedly contributing to copyright infringement by allowing millions of people to download copyright music over the Internet for free.

    It's not a question of copyright, it's a question of selling counterfit goods. It's like shutting down those guys on the street in New York selling the gucchi purses.

  • Re:How is this different from Napster? (Score:3)

    by schtoo ( 119802 ) on Thursday November 09, 2000 @07:30AM (#634579)
    It would seem to me the difference comes in the form of money. Ebay is actually making some money off of these bootlegs. IANAL but in my mind that would make this situation much worse. In other words, if Ebay can lawfully make money off of bootlegs than certainly Napster should be able to freely enable the exchange of songs.
  • I bet that the ruling would have been very different if the case had been brought forward by the RIAA, MPAA or one of the mega studios directly.

    Here eBay is the establishment, versus a deadhead that is seen as trying to limit the profits of business. It doesn't take much cynicism to know in advance who would be coming out on top.

    Judges almost never rule against the establishment. There are very few mavericks who don't care how their peers on the bar feel. It would be career-limiting.

    However, there could be a useful lesson to learn from this. If grey areas ripe for suits could be anticipated and suits filed in advance by a faction seen as anti-establishment, then the failure of the action would set a precedent which would then deny success to parties like the RIAA on the same topic. Precedents are very powerful weapons in law.

  • Mad theory of the day... (Score:3)

    by darylp ( 41915 ) on Thursday November 09, 2000 @07:31AM (#634581)
    You know, this Stoner dude might be a sly manipulative genius.

    Assume he's a big Napster / music sharing fan, and wants to help Napster out. All he has to do is bring up a 'novelty' lawsuit against ANOTHER online service. This will gets resolved sensibly, and he appears to have lost...

    However, the Napster lawyers NOW have a legal precedent to take to court with them that basically covers (from a non technical P.O.V. of course) the same thing they do but all legal like. Nice one, Randall!

  • The Plantiff's name is Stoner. Only A greatful dead fan of this caliper would consider trying to sue for something he had no rights to. Where has all the common sense gone? -peel
  • Shouldn't someone explain to this fan that the grateful dead doesn't tour anymore? That they've been more or less disbanded since Garcia died? There are no more concerts for this fan to tape.

    Lee Reynolds
  • are always considered "flame-bait" or "trolls" -- sure, they are worded to evoke some sort of response -- but what message isn't? just because a message seems to hold a different viewpoint than your own, or the (slashdot) mainstream, doesn't mean it's flamebait -- talking about the end victim in all of this seems to me completely relevant. to have every message be simply informative and non-opinionated is unrealistic and, yep, quite boring. fishfucekr.
  • I dislike bootlegs because of the outrageous prices, especially because the artist receives none of the profit.

    OTOH, I can't see anything wrong with it -- if the label and the artists aren't willing to satisfy their most rabid fans with reasonable alternatives, fuck 'em.

    Regardless of how the artist and/or the label feels about them, live recordings should be free and legal. It should also be legal to compile those recordings and distribute them.

    As for whether you should be able to make a profit on them, I think it is reasonable to ask for a few bucks, if only to cover the cost of equipment, materials, and a small reward for the effort. You're selling a service to people without CD-R drives or a decent Internet connection to download the music themselves. Five bucks seems reasonable to me, anything more than that might be a stretch.

    --

  • I'm sure that argument can be flushed down the toilet, once they go through all those internal emails... Given the microsoft case, and shawn fannings reasons for starting napster, unless they've gone through and erased all their backups, something interesting is sure to be waiting to be found in there.
  • I agree, and I disagree... First off, I agree that one of the major reasons the Ebay got off so easily is because it is a big business... And that one of the reasons that napster is getting reemed a new one is because it is smaller, with a sort of rebelous feel to it. But..... The sole purpose of napster is to bootleg music (but it should be free anyways, why the heck should we pay suits money... but that's a whole other argument there) and with ebay, 90% or more (i have no idea what the actual number is) is legitametely resold, and even a decent amount of new items. With very few illegal items, but I agree that the basic principal of both is the same, and that it shouldn't make a difference... But that's america for ya, whoever's got the money, has the voice...

  • Ruling says it's IDENTICAL to Napster (Score:5)

    by Morgaine ( 4316 ) on Thursday November 09, 2000 @08:46AM (#634588)
    You only see a difference because in each case you're reading the ruling from the point of view of the party bringing the suit. That doesn't reflect how things work at all.

    Judges almost never rule anti-establishment (it's career-limiting), and in this regard the ruling was identical to that in the Napster affair in which big business won out over the small guy. The item in dispute is irrelevant --- lawyers can produce an argument supporting either view with equal ease. All that matters is which side big business is on.

    Here eBay is big business, so the deadhead was told to take a flying jump. Are you surprised?

    In both cases, the law acted identically.
  • I think the difference is that Napster is specialized where as Ebay is not. If napster had deals with most of the artists involved okaying their distribution of their music, then the law would not have come down on them nearly as hard if it was found that only 5% of the music available through their service was in violation of copyright.

    Likewise, if eBay wasn't eBay, but eBootlegs.com, theye'd probably be in very hot water from the get-go, since they'ed be more directly encouraging such sales, rather than their more passive nature of just selling what people want to sell and not giving anything high priority.
  • ...actually encouraged bootlegging of their gigs!

  • How is this different from Napster? (Score:5)

    by Speare ( 84249 ) on Thursday November 09, 2000 @07:11AM (#634591) Homepage Journal

    I can use one networked listing service to sell shady items, but I can't use another networked listing service to sell shady items?

    In what district is the Napster case being decided? In what district will this eBay case be appealed (cuz we know it will)?

    Two rulings on very similar cases that contradict each other: that's one of the tickets for Supreme Court review.

  • This could be good for Napster. If eBay is not liable for the what their users are doing, why should it be any different for Napster? Seems like the same situation to me.

    All in all, this looks like an important ruling concerning any service hosting "trading" activities for it's users.

  • software (Score:3)

    by romco ( 61131 ) on Thursday November 09, 2000 @07:12AM (#634593) Homepage
    If they are not liable for bootleg music how come they are for bootleg software?
  • If eBay is in the clear, what happened with napster?

    We are trying to hold eBay responsible for its auctioning conduct...

    How is Napster different then an auction service that is only based on how much you like a song, not how much you want to pay for it? Why can't the courts make up their mind?
  • Kidding, of course, but we could use someone who has a handle on issues like this.

  • Re:software (Score:3)

    by Hairy_Potter ( 219096 ) on Thursday November 09, 2000 @07:15AM (#634596) Homepage
    No, Ebay will pull a sale if the copyright holder asks them to.

    If you sell MS software in violation of their copyright, MS will ask Ebay to pull it.

    Had Grateful Dead Productions asked Ebay to pull the sale, they probably would have.

    Read the article.
  • A 'fan' of the Grateful Dead? How does he have any legal standing to bring a lawsuit against someone selling (assuming they are for the sake of argument) illegal copies of music by the Grateful Dead? He's not a copyright holder of the songs, the recordings, anything. The case should have been rejected outright since he's not an interested party in any legal sense.
  • This is one of the few cases where I actually agree with a judge on a technical issue. Of course this won't make the big stories that going against Napster did, but it is nice to see technology winning a few battles. I am not encouraging sale of illegal goods on ebay but I am encouraging to have to monitor every item and check the legality of it. If that were the case they would be shut down as would almost all public auction sites. Anytime you allow the public to use a resource there will be some that try to use it improperly or illegally. Good luck in the appeal ebay.
  • all this means is that eBay is not liable for someone distrubuting 'illegal' music over their auctions, but the recording companies can still go after the seller. Guess that eBay is going to be hit with a lot of subpeonas concerning member information based on 'illegal' cd sales.

    Eric Gearman
    --

  • Napster is different (Score:3)

    by jbischof ( 139557 ) on Thursday November 09, 2000 @07:16AM (#634600) Journal
    -How is this different from Napster

    Lets see, Napster, load it up and it scans your hard drive for MP3's and shares them for the public to download, and it searches for only mp3's

    Ebay, for example, puts no restrictions on what you sell or buy.

    Personally I think this is a step in the right direction. How can companies be held responsible for the misuse of their products. Getting rid of naptster is not a solution, we will just go back to ftp or Gnutella or P2P.

    If we start restricting what can and cant be sold over an independant enitity like ebay then full throttle net restrictions would start to take effect and the internet would lose what makes it so great.
  • That's what this is trying to convey. WalMart hasn't been found criminally responsible because they sell hunting bows, shotguns, rifles, and the like. However, they have been sued over such things.
  • Why do the traditional laws for auction houses suddently not apply to eBay? Its core business is the auctioning of materials from person to person, and as such should be subject to the same kind of scrutiny as any other auction house.

    I know people will think this flies in the face of the whole "Information wants to be free" argument prevalent on /., but that's not what I believe this case is about. It's not about the fact that this particular case involves bootleg recordings. As far as any auction house is concerned, it is merely another item to be sold.

    The only way I could think of that eBay is exempt from traditional laws is that they never have the actual objects in their possession , but IANAL, so feel free to correct me.
    ============================================

  • Evidence of Napsters knowledge was raised (Score:3)

    by Speare ( 84249 ) on Thursday November 09, 2000 @07:33AM (#634603) Homepage Journal

    DMCA may actually save Napster just as CDA did here. There's a provision that grants amnesty to service providers given that they don't knowingly allow illegal use of their service.

    In the Patel suit, internal Napster memos were entered into evidence that showed pretty clearly that Napster's founders were complicitous to illegal infringements.

    That would cancel the above defense. It's up to the other defenses: Patel's ignoring precedent case law (Betamax, et al.)

  • In Itally, bootlegging concerts onto CDs is legal provided that you open a bank account to which the original artists have access to and that you deposit a nominal fee plus a certain (minimalist, but still) percentage of the sales of your bootleg disk.

    I have one such CD (a Nine Inch Nail concert) which was legally bought here in Canada in a HMV store.

    I don't have the numbers, but I'm sure some /. reader from Itally could come up with them. Anyone?

    Karma karma karma karma karmeleon: it comes and goes, it comes and goes.
  • "they never have the actual objects in their possession"

    You're right, ebay never sees or checks the items that go through (unless there is some sort of descrepancy, as far as i know) a MUCH larger volume of items are bid on every day on ebay.com than would be each day in a traditional auction house. (that is somewhat speculation, i don't have a lot of experience with normal auction houses) And it doesn't seem practical at all that they could be held responsible for everything people do through their site.

    In the ebay user agreement that every seller and buyer agrees to by using the site it says:

    " 3.1 Overview. Our site acts as the venue for sellers to list items (or, as appropriate, solicit offers to buy) and buyers to bid on items. We are not involved in the actual transaction between buyers and sellers. As a result, we have no control over the quality, safety or legality of the items advertised, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to buy items. We cannot ensure that a buyer or seller will actually complete a transaction." and it goes into somewhat more detail from there. (can be found on ebay.com by clicking the "safe harbor" link at the bottom of the page)

    Now, this MAY have been added since i've joined (naturally, i didn't read it when i first started using ebay) but i doubt that there hasn't always been something along those lines in there. (and, i never recieved a notice about there being a change in the user agreement, and that's the sort of thing that ebay is pretty good about, usually)
  • How is Napster different then an auction service that is only based on how much you like a song, not how much you want to pay for it?

    In the eyes of the RIAA, if you like a song, you must pay for it.

    Their problem with Napster is that The Labels are not profiting from people's taste in music.

    Or maybe I'm just being cynical...or just sick of having them cram bad music by surgically-altered Barbie & Ken doll-look-alikes down my throat.

    I'm surprised the RIAA isn't suing eBay here, as they probably could have won (more lawyer$.)
    Thus sprach DrQu+xum, SID=218745.

  • Clarification (Score:4)

    by Andy_R ( 114137 ) on Thursday November 09, 2000 @07:44AM (#634607) Homepage Journal
    It's not 100% clear from the article, but the ruling seems far less extensive than the slashdot story might imply.

    Ebay still can't sell bootlegs if the copyright holder objects, all that this case does is relieve Ebay of the task of checking every single auction they host to make sure the products are legitimate. Did anyone (other than the plaintiff) really think they were obliged to do this?

  • I don't get it... (Score:4)

    by teeheehee ( 12647 ) on Thursday November 09, 2000 @08:52AM (#634608) Homepage

    If eBay isn't held liable for the music warez being piped through it's site, how can Napster et. al. be held under different responsibilities?

    It seems to me that since the music still gets from point A to point B, and the site/service is acting as a medium between the users at sites A and B, that the site/service must be considered doing the same thing no matter how they go about doing it. Therefor eBay is getting away with what Napster isn't, a double-standard that even the Man should be able to see...

    Am I flawed in this logic???

    --
    Everything you've just read was poetry and art - no infringement!
    (Discordia) :: Hail Eris!
  • First of all, anyone who is a bootlegging fan knows that people who sell bootlegs are evil. With that said here are what I think are the fundamental difference between the two... When you get your hands on a bootleg, generally you would have had to trade to get it (or buy it if you suck like that) and most people wouldn't go to the trouble if they weren't big fans. Heck there are a lot of artists who don't mind if you record their show, you just have to get permission (the hard part). Now, bootlegs are recorded at concerts and the artist has already made all the revenue they're going to get out of doing that concert, so if someone bootlegs that concert the band isn't loosing any money. For those people who just couldn't make it to the concert, bootlegs are wonderful (I missed the community service tour but got the bootlegs). In the case of Napster, however, the possibility exists that you could have tons of music that you don't or didn't previously own therefore creating a loss FOR THE RECORD LABELS, artists don't generally lose out on lost sales unless theyre collecting royalties. Remember, the people bootlegging usually have good intentions, it's who's hands it falls in and the dick who tries to sell them. Sometimes there's nothing more you can do than to buy one every now and then, one you have to have but couldn't obtain... you happen to find one on eBay, what are you going to do? These people can't be guilty of anything, all they want is some music, they're not cutting into anyones pocketbooks, is it really all that big of a deal? The RIAA is scaring and threatening the one hand that feeds it, pretty soon consumers and artists are going to get fed up and find a way to bypass record labes in the music production process altogether (some already have) they better watch themselves.
  • uhhhh... We The People... as in We The People of the United States... as in the US Constitution... I realize you're not American so I'm not gonna call you stupid or anything.. =D
  • You've described my bootleg collection quite well. I've got boots of Husker Du, The Replacements, Sugar, Dinosaur Jr., Jane's Addiction, and R.E.M. -- well, R.E.M. is more or less still together, but they may as well have quit a few years ago, but even then, that bootleg sucks. In any case, never had the chance to see any of them live, either because I was too young to know about them, or simply missed an opportunity because I didn't have a car, or because I found out too late. Why should I be robbed of the experience?

    Speaking of The Dead, I never saw them either. I didn't get turned on to their sweet Northern Lights rhythms until just before Jerry died. Phish is the pathetic ditchweed alternative that everyone has gravitated toward since then, and I *did* see them live -- I wouldn't even WANT bootlegs of that show, thank you very much. File them w/ R.E.M. under "faded stars".

    --

  • If the RIAA refuses to publish an artist's work (or even better, numerous artists' work), they will promote what they fear: a second distribution system. One in which they have explicitly relinquished any stake in the recordings that they might otherwise have. 'Course I wouldn't mind seeing them shoot their own foot.
  • Something you should note is that the express purpose of Napster is for people to trade MP3 encoded music across the net. The people who wrote Napster wrote it for this purpose, therefore "aiding and abetting" the users of the software to share illegal files with each other (depending on your interpretation of copyright law). eBay on the other hand has hundreds auctions going into the mix each day, and they don't "support" the trading of bootleg recordings. They can't be responsible for everything that goes through their website, just as they can't rummage through every auction created daily and determine whether or not someone is trying to sell something they shouldn't.

    You're logic wasn't flawed, just a little translucent.
  • From the article:
    He said the San Jose, Calif.-based company regularly pulls postings from its site upon receiving complaints from copyright or trademark holders of licensed music, software, movies, clothing and other goods.

    In other words, ebay is relatively pro-active about stopping improper auctions. However, there are limits to how much policing they can do. Given the volume ebay does in legitimate auctions, I doubt they would be unhappy if we could wave a magic wand and make all the illegitimate ones disappear. Napster, on the other hand, intended from the beginning to be a service for copyright infringement. To quote from the injunction [eff.org] awhile back:

    The evidence shows that, in fact, promoting the new artist was not the chief strategy in Napster's business plan. Defendant promoted the availability of songs by major stars as, and I quote from some of their papers, "opposed to having to go through page after page of unknown artists."

    In short, even though I disagree with the reasoning of the ruling (which tends to minimize the distinction between ebay and Napster), I feel it was still a correct outcome because of the intent behind the services in question.

  • Re:You're right but.... (Score:1)

    by Anonymous Coward
    Actually there are about three different touring groups now:

    Phil & Friends
    The Other Ones
    Ratdog

    And yes, they all allow taping for personal pleasure ( no sales).

    All of the Phil & Friends tour this fall will be available for download also.

    So, you see there may actually be more fresh, new tapes available than before.

  • Re:Napster is different (Score:3)

    by Erasmus Darwin ( 183180 ) on Thursday November 09, 2000 @09:52AM (#634616)
    Ebay, for example, puts no restrictions on what you sell or buy.

    Err, not quite. Here's a list [ebay.com] of what's restricted from sale on ebay. Among the things that you aren't allowed to sell are alcohol (due to heavy regulation/potential of sale to minors), controlled substances (for obvious reasons), tobacco (same reason as alcohol), human parts and remains (with an exception for snippets of hair in a locket and educational skeletons), and live animals (presumably due to all the complications). In general, it seems like ebay erred heavily on the side of covering their own asses (which probably helped their common carrier status granted in the ruling).

  • Is this a joke? The CDA was struck down as unconstitutional [epic.org] ages ago.

    --jb
  • Since when was a mechinism that allows a crime to take place not a crime itself. This is very new for the computing world and I would liek to see how it fans out.
  • Well in a round about way I suppose it helps Napster and filesharers but I'm not impressed with the ruling either. I believe that eBay has a certain responsibility to the marketplace to which it caters. There oughtta be a screening process, particularly if we're supposed to declare our purchases alongside our income tax and so on. We have to co-operate legally in the marketplace, shouldn't our content, product and service providers?

    1. O P E N___S O U R C E___H U M O R [mikegallay.com]
  • Offtopic? He is correct and items like this do have collectable value.....I've seen them in record stores....

  • Precedent for online services. (Score:3)

    by ejbst25 ( 130707 ) on Thursday November 09, 2000 @07:20AM (#634621) Homepage
    The CDA says that ISPs cannot be responsible for how their users use their service. This judge says ebay falls under the same rules. Napster is also just offering a service...and they shouldn't be held responsible for their users actions...no matter how illegal. Same sort of thing as if I got in trouble for writing threatening emails. My ISP shouldn't be held responsible.

    Hopefully this can act as a precedent for online services.
  • ...is that the Dead allowed people to record whatever they wanted at their concerts.

    Usually, a special area was set up specifically for this purpose.
    Now, most of these dupes were traded rather than sold, but still...
  • He may have been a bidder on the item. He may have considered the item to be a legitimate production of GD. He may have been disappointed with his low quality reproduction of a live performance. He may have taken the brown acid.

  • Re:why??? (Score:3)

    by XLawyer ( 68496 ) on Thursday November 09, 2000 @07:51AM (#634624) Homepage
    It's not so much that eBay never has the objects in their possession, but rather that eBay is more like a bulletin board for hire than like a traditional auction house, such as Christie's or Sotheby's.

    The big difference is that a traditional auction house doesn't just list merchandise, it actively sells it. That is, auction houses do their own promotion, printing up glossy catalogues of items for bid. They have PR departments who try to drum up interest in particular items or collections. They will appraise items to help set opening bids and to help the seller gauge the eventually hammer price. For works of art, they even investigate the history of the item to make sure it's what the seller claims it is. In short, a traditional auction house acts like an agent for the seller, and thus is implicated if the sale is illegal or improper.

    (I should add, as a hedge, that to be an "agent" has very specific legal meaning, and I don't know that the law really treats auction houses as sellers' agents. All I'm saying is auction houses seem to act a lot like agents, and this justifies treating them one way.)

    eBay, in contrast, doesn't get involved in the individual items it lists. The seller can list just about anything. The seller chooses how to present and describe the items. eBay doesn't vouch for anything. If memory serves, eBay does get involved in arranging payment, but even that is merely holding money in escrow, and has nothing to do with the item being sold.

    If people at eBay know that someone is using their service for an illegal or improper purpose, they have certain responsibilities, and I'm under the impression that eBay tries to live up to them. But since they don't have the same relationship with the seller, and don't act the same with regard to individual sales, there is reason to treat eBay differently from an auction house.

  • In the eyes of the RIAA, if you like a song, you must pay for it

    no. I doubt they say that, in that absolute sense. its the ARTIST'S decision whether to sell or give away music. if an artist is ok with free taping, the riaa can't do shit about it. period. [EOF]

    --

  • Dunno... If anything, Napster should be the legal one, since no profit is made by the people doing the dubiously legal distributing.

    It's good to see, though, that at least one judge doesn't have his head completely up his ass. Now if we could only find more like that...

  • We The People it's the first three words from/of the American Declaration of Independence
  • This is excellent news. As I posted in a DMCA article on Slashdot a few months ago, I was contacted by lawyers for Universal Records when a user was selling Godsmack bootlegs on my auction site. Like I told Universal -- deal with the person selling them, not me. And I left it at that.

    I'm glad to know that if they ever contact me again, I have a legitimate legal precedent to tell them to go to hell.
    ---
    seumas.com

  • Obviosly, it's "We The People..." The script used is just slightly ambiguous.
  • errr that's When in the course.. the US Constitution

  • Promoters and Bands encourage bootlegging (Score:4)

    by ackthpt ( 218170 ) on Thursday November 09, 2000 @08:05AM (#634631) Homepage Journal
    Serious. In this age, with inexpensive technology and tools, it's completely beyond me why I can't order a video or DVD, with professionally recorded audio and video of a concert I've just attended.

    I swear this is a huge potential market, by ignoring it, encourages bootleggings. I'm not really excited at the prospect of buying a video tape of a Rush concert shot on someone's Sony hand-held video camera, if I could choose something that was shot and recorded by the concert staff. I'd think these would also be popular with people who didn't attend that particular concert, but would like to see it on their home set. Any argument that this would decrease concert attendance is preposterous and knee-jerk. I could see fans of the Dead, had this been recorded and available on VHS or DVD, buying one from each concert stop.

    --

  • if an artist is ok with free taping, the riaa can't do shit about it.

    Does the word "blacklist" mean anything to you?

    Thus sprach DrQu+xum, SID=218745.
  • Oups:-)

    That's definitly embarrassing!
    I didn't mean to offend anyone! But i haven't seen the actual document before (I'm from germany).

  • For more information on a great organization that's involved in trading live, losless concert recordings, check out <a href="http://etree.org">etree.org</a>.

    The GratefulDead, as well as other bands, explicity allow the taping and trading of their live music. They only forbid the sale of said recordings.

    Follow the link above, and you'll get more information on this topic than thousands of /. posts could possibly provide.

  • The Plantiff's name.... (Score:3)

    by In-Doge ( 116196 ) on Thursday November 09, 2000 @07:21AM (#634635)
    Randall *Stoner*?

    Well, they say there's a truth to every stereotype ;)

  • There is some legal principle that lets interested parties bring suit for things like that. Someone smarter than I will surely know the proper name.

  • bootlegs of M$ win? (Score:4)

    by TheGratefulNet ( 143330 ) on Thursday November 09, 2000 @07:22AM (#634637)
    I 'recorded' a copy of windows. I even used real high quality a/d converters. most of the bits are there.

    anyone want a copy? somehow, using a tube preamp section seems to have fixed many of their BSOD's. weird, eh?

    --

  • DMCA may actually save Napster just as CDA did here. There's a provision that grants amnesty to service providers given that they don't knowingly allow illegal use of their service.

    Of course, that's assuming that Napster doesn't settle with RIAA first...and it looks like they're starting to (bertelsmann a.g...)

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