The short answer is: "No" -- as far as I can tell -- I'm not a lawyer. But this is just one more data point in the disturbing trend of the DMCA being used as an all-purpose club to remove material from the Internet.
On hearing of this, my first thought was that perhaps the devices in question are actually licensed somehow, instead of being sold outright. But I spoke to two former members and the spouse of a current member of the CoS, each of whom assured me categorically that the devices were purchased outright, with no license required to be signed. A staffer at the Lisa McPherson Trust found a catalog where anyone can buy an e-meter; the "public price" is a little higher than the price to CoS members, but there are no apparent limitations to the purchase. A credit card is all you'll need.
To members of the Church of Scientology, however, it's more than just an electrical device. It's used in "auditing," which apparently helps new members advance in the program. Members of the CoS who have become experienced in this process are licensed by the CoS to audit others (but, again, the purchase of the items themselves is not under license).
Some e-meters apparently have Intel Inside (an 8-bit microprocessor which performs some rudimentary functions). But ever since a 1963 raid in which the FDA took exception to the marketing of the device as medically beneficial, e-meters have carried a disclaimer which begins: "By itself, this meter does nothing. It is solely for the guide of Ministers of the Church in Confessionals and pastoral counselling."
I'd hard-pressed to think of why copyright could apply to a piece of electronic gadgetry which "does nothing." So why is eBay refusing to allow its sale?
Because DMCA is such an effective club.
These items are not prohibited due to their nature, but the Church of Scientology is giving us Notices of Infringement, which we are legally required to honor. These items are being ended for that reason.
eBay Community Watch Supervisor
(Emphasis added.) That explanation, by the way, is a little facile: eBay is "legally required to honor" such notices if it wants to remain lawsuit-proof about the item. They would be well within their legal rights to leave the auctions up. More on this later.
When Mr. Keller expressed surprise at this, the next message went into a little more detail:
There is a procedure under the Digital Millennium Copyright Act whereby someone who claims to be an owner of Intellectual property can send a notice sworn under penalty of perjury that an item is infringing. The internet provider must then remove the item. The seller of the item (not a third party) can request and fill out a counter notice. If he/she does so, the complaining party who filled out the original notice has a limited period of time to file suit, or the provider can go ahead and relist the item.
This is set up under the statute so that the interested parties will be the ones doing any litigating.
eBay Customer Support
In response to my requests for more detail on exactly how the DMCA was being invoked by the CoS, an eBay representative promised that someone would get in touch with me. Unfortunately, I haven't heard from them by press time.
Here's what I think happened, based on the above -- feel free to follow along in the full text of the DMCA if you like.
The DMCA is an unusual regulation in that it principally protects service providers from litigation and then rigidly defines the steps they must follow to stay under its umbrella. It puts eBay in a position a little bit like Bart Simpson's, when Sideshow Bob announces:
"The following people will not be killed by me: Homer Simpson, Marge Simpson, Lisa Simpson, that little baby Simpson.... That is all."
Title II of the DMCA, otherwise known as the "Online Copyright Infringement Liability Limitation Act," is what seems to be relevant. It describes under what conditions a service provider is not liable "for infringement of copyright." My guess is that eBay is looking at section 202(c): "Information Residing On Systems Or Networks At Direction Of Users." The system is ebay.com; the users are the sellers; presumably the information is, in this case, the item being auctioned. Or the text and graphics used to describe the auction? I'm not sure.
Section 202(c)(1)(C) indicates that eBay will not be subject to liability as long as it, "upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity."
Paragraph (3) describes the elements which must be present in a notification, including: "A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
Based on eBay's statements, the Church of Scientology has sworn under penalty of perjury that it has an "exclusive right" to copyright on the material that was posted in the auction.
To me, that seems obviously wrong. An e-meter is an electrical device, or a religious artifact, depending on how you look at it. Either way, it's sold to customers who may or may not be members of the Church. Once they've bought the items, they should be able to do with them what they wish, including reselling them to whoever they wish.
But to enjoy the protections of the DMCA, service providers must remove any material as soon as they're told it infringes on copyright. Once material has been challenged, the service provider must act "expeditiously" to remove it. Only when the material is gone can the accused user make a case to defend it.
The carrot for service providers becomes a stick for users.
Meanwhile, I'd like to see the statement that the Church of Scientology made, under penalty of perjury, that an auction of an e-meter infringes on their copyright in some way. Any spokespeople for the CoS reading this are welcome to contact me to discuss it.
But, as Declan McCullagh wrote in an unrelated DMCA story yesterday, we are moving toward a two-tier copyright system on the internet -- at least in this country. If you don't host your own content, the DMCA's censor-first, ask-questions-later mandate effectively strips you of your rights.