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The Courts Government News

eBay Beats DMCA 179

Posted by Hemos from the beating-it-like-a-drum dept.
pgrote writes "eBay won a court battle that brought to light a key provision of the DCMA. The judge says, "Although it may facilitate the sale of pirated material, "eBay does not have the right and ability to control such activity," a standard required by the Digital Millennium Copyright Act, the judge wrote." So does that mean that the P2P file trading programs are legal since the pirating occurs off the sites? This is could be a very important precedent. " In talking to some lawyer friends, their perspective on part of the Napster case was that by being very difficult in the beginning, Napster almost doomed itself. But, as always, IANAL ? .
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eBay Beats DMCA More

eBay Beats DMCA

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  • err appeal to happen. The RIAA has money- that will sway the courts, i mean, law to their interpretation.

    Just ask Bush and the DOJ about Microsoft!

    In a more serious nature, tho, I'm scared to go to a used CD store and buy a used CD.... someone might have recorded that music previously and that makes me buying a pirated copy...
  • I am glad to hear of any victory over the DCMA, RIAA, or any other agency that doesn't like my MP3 collection.

  • This might mean something... (Score:4, Interesting)

    by Dimensio ( 311070 ) <[moc.uolgi] [ta] [ratskrad]> on Friday September 07, 2001 @07:52AM (#2262750)
    This probably wouldn't have any effect on P2P programs themselves, as the courts would have to decide whether the intent of such software was to deliberately facilitate copyright infringement, but this could take the heat off of ISPs and give them more leeway when they are told by someone (like, say, the MPAA) that a user is sending pirated software through their service. Remember the salon.com story about a person accused of copyright infringement on USENET whose access was immedeately suspended while they were on vacation, no investigation necessary? ISPs may now have more freedom to say 'prove it' when the MPAA, RIAA or another such organization comes knocking.
    • Why mess with prove it? they can just say screw it.

    • Re:This might mean something... (Score:5, Informative)

      by dragons_flight ( 515217 ) on Friday September 07, 2001 @08:12AM (#2262840) Homepage
      I do remember that story [slashdot.org] and since then I've done a little foot work to see what the deal is.

      Looking to the DMCA itself, what happens when infringement is suspected? Well copyright holders (or more typically their lawyers), can send a letter to your ISP (or other network provider) and they then cut off your service or risk being sued. Actually if you look at the wording in the DMCA, it appears that the intent was that action be taken only if you are actively infringing on copyrights, such as hosting files on a website, at the time of the receipt of the copyright holder's letter (amended section 512 of the Copyright Act). One problem is that the limitations on damages appear to allow an ISP to cut off all service whenever a notice is received without any repercussions and regardless of any actual infringement (Section 512(g)(1)). A second problem is that even if you aren't infringing at the moment, the fact that someone said you were might be enough to negate the ISP's protection should you infringe in the future (see Section 512(c)).

      The DMCA does explicitly allow you recourse however. Pursuant to Section 512(g)(3) you can file a counter notice with the ISP and they have to restore your access within 14 days unless the copyright holder files for a court order against you. I don't know how this will intersect with the notion of arbitrary service termination in many license agreements, however. Furthermore, if you prove in court that you did not commit the act of which you are accused then the accuser may be subject to paying monetary losses, punitive damages and legal costs.

      IANAL, but I am a concerned citizen (IAACC, anyone?)

      • Re:This might mean something... (Score:5, Interesting)

        by CaptJay ( 126575 ) on Friday September 07, 2001 @08:26AM (#2262913) Homepage
        The DMCA does explicitly allow you recourse however. Pursuant to Section 512(g)(3) you can file a counter notice with the ISP and they have to restore your access within 14 days unless the copyright holder files for a court order against you.

        The problem, of course, being that you have still suffered an interruption of a service you pay for, because some copyright owner said you were doing illegal things. The source of the problem is that the law asserts good faith from the copyright holders, and relies on them to not make any errors. When an error *does* occur, then the customer ends up being branded a criminal without having any kind of chance to challenge this verdict BEFORE his access is terminated.

        Presumption of innocence does not work for companies, and the DMCA seems to openly take advantage of that fact to try to scare people who might want to violate copyrights: "We need proof to send you to jail, but we don't need any to cut your internet access..."

        • ... DMCA seems to openly take advantage of that fact to try to scare people who might want to violate copyrights: "We need proof to send you to jail, but we don't need any to cut your internet access..."

          If the law were clarified or changed so that ISPs and network providers would only act if you were actively sharing or hosting infringing materials at the time someone complained, would you be satisfied?

          Personally, I would be okay with it if service only got terminated when there was something physical and immediate to point to. Like I said, it seems in parts that this is what the DMCA's authors intended, but other parts don't adequately support it.
          • Personally, I would be okay with it if service only got terminated when there was something physical and immediate to point to.

            Yep, I think we agree on the whole thing. This is already the standard for other illegal things, such as denial of service attacks: If there is observable evidence that proves that the client is doing illegal things, he gets his account terminated. It should be no different for copyright violations, which arguably cause less harm than DDoS.

      • Furthermore, if you prove in court that you did not commit the act of which you are accused then the accuser may be subject to paying monetary losses, punitive damages and legal costs.



        Great in theory, lousy in practice. If could afford the legal fight, then it might work ("MAY be subject to...legal costs"). However, how many of us have the resources to fight the MPAA or RIAA one-on-one? As a lawyer client of mine told me recently, he sometimes has to ask his clients "How much justice can you afford?" Personally, this one reason I'm a member of EFF.

      • >> Furthermore, if you prove in court that you did not commit the act of which you are accused then the accuser may be subject to paying monetary losses, punitive damages and legal costs.

        Maybe it's just your wording here, but if this is the case, I'd be very scared... you shouldn't have to prove that you're "not guilty", they should have to prove that you ARE guilty.

        Although it's a role-reversal (you taking them to court for wrongful accusal), they should still have the burden of proof in such a case.

        JM2C,

        MadCow
        • Maybe it's just your wording here, but if this is the case, I'd be very scared... you shouldn't have to prove that you're "not guilty", they should have to prove that you ARE guilty.

          Perhaps it is sloppy wording on my part. The most relevant section (512(f)) makes no reference to burden of proof, so I would assume that standard principles still apply. Again IANAL, but it would seem to me that if you contest their claim of infringement then the burden lies with the accuser. However to recieve full punitive damages (above and beyond monetary losses and court costs), requires the accuser "knowingly materially misrepresents", which might require you to prove something about the accuser. I'm not sure.

          In any case I am pretty sure that typical rules regarding court evidence and proof still apply. Sorry for any confusion.

  • Next Step (Score:5, Insightful)

    by Fat Casper ( 260409 ) on Friday September 07, 2001 @07:55AM (#2262764) Homepage
    Now what we need is for the Bush administration to order the Justice Department not to enforce the DMCA. The're already dropping useful judgements, maybe now they can do something useful themselves.

      • Now what we need is for the Bush administration to order the Justice Department not to enforce the DMCA. The're already dropping useful judgements, maybe now they can do something useful themselves.

      Unfortunately, they're only going to drop judgments where the ruling is not in favor of big companies making money (you know, the ones who fund the repubilican's advertisements that slam the other candidates). I could see him asking the judge to change his mind on this case while quoting star trek: "Sometimes the needs of the many outweigh the needs of the one" (sorry e-bay, you're a "one").

      • Re:Next Step (Score:4, Informative)

        by osgeek ( 239988 ) on Friday September 07, 2001 @08:26AM (#2262915) Homepage Journal
        Unfortunately, they're only going to drop judgments where the ruling is not in favor of big companies making money

        To be fair (something you don't see on /. very often), we're talking about the entertainment industry here. If any party has sold its soul to them for campaign contributions lately, it's been the Democrats. The Clintons basically rented out the Lincoln Bedroom for every big star and producer in Hollywood in exchange for a few bucks.

        Perhaps the Bush administration will deal the entertainment industry a blow for being such loyal Democrats and cripple their revenues by taking the teeth out of the DMCA. :)

          • To be fair (something you don't see on /. very often), we're talking about the entertainment industry here. If any party has sold its soul to them for campaign contributions lately, it's been the Democrats.

          Oh my word. I hope I didn't give the impression that I like the democrats any better than the republicans. That certainly wasn't my intent!!!

        • The DMCA was passed unanimously in the House and the Senate. Both establishment parties are equally guilty. (The Greens and Libertarians oppose it, but who listens to them?)


          There are now two lone politicians (one from each side, I can't remember the names) trying to ammend the DMCA so that it isn't so bad, but they face overwhelming opposition from their own parties. However, it's possible that some other congressmen and senators are just ignorant (just rubberstamped the DMCA without bothering to look at it) and not actually corrupt, so perhaps they can be persuaded.

    • Re:Next Step (Score:1, Funny)

      by Anonymous Coward
      Well, I think if we're going to stop software and music piracy, we ought to crack down on the butt piracy perpetrated by Slashdot editors, too. Butt piracy is illegal in many states, though the laws have come under fire in recent years. It would be wise to reinstate the laws that have been repealed and make butt piracy the crime it once was. It undermines family values and is just disgusting. And the editors of this site take great pride in promoting butt piracy, so I propose a boycott of this site, too. Thank you for your time.

  • We need more court cases like this. (Score:5, Insightful)

    by mblase ( 200735 ) on Friday September 07, 2001 @07:56AM (#2262767)
    EBay asked Hendrickson to submit a sworn, written statement detailing his claim through its Verified Rights Owner Program, which lets copyright holders request that eBay remove an infringing item. Hendrickson refused, saying his general complaints should have been good enough.

    I love that part. EBay suggested he go through their standard procedure for filing copyright complaints, which (I believe) has worked for others in the past. He refused, snobbily. He brought a legal case, and he lost.

    Good for him. If he'd done things the acceptable way instead of trying to let lawyers solve his problem, he'd probably have the problem solved already. America needs more lessons like this.
    • Amen.

      If people would just assume their problems can be resolved rationally (ie: minus the lawyers), it would be more likely that they WILL be resolved rationally. Instead, people just assume that the standard channels won't work and bypass them in favor of the big guns.

      Hendrickson: "I have a complaint, I need to speak with your CEO right this instant!"

      eBay: "Please present your complaint to our complaint department. They are well versed in handling complaints and understand how to escalate the issue if need be."

      Hendrickson: "Do you know who I am?"

      eBay: "No, we don't. But that's the great part - no matter who you are, we'll treat you with as much respect as everyone else!"

      Hendrickson: "SMARTASSES!! DO YOU KNOW WHO YOU'RE DEALING WITH HERE??"

      eBay: "No, really, we don't."

      Hendrickson: "Fine, I'll sue your asses for not treating me with the respect I deserve."

    • Re:We need more court cases like this. (Score:4, Interesting)

      by osgeek ( 239988 ) on Friday September 07, 2001 @08:51AM (#2263044) Homepage Journal
      If he'd done things the acceptable way instead of trying to let lawyers solve his problem, he'd probably have the problem solved already. America needs more lessons like this.

      Hear hear. The problem is that the US has so many damned lawyers, and our law schools are churning out tons more all the time. A few years back, the statistic I heard was that the US has 5% of the world's population, but 75% of the world's lawyers. Makes me wake up in a cold sweat in the middle of the night.

      The problem with churning out all these lawyers is that the law is a self-germinating profession. For example, what happens if you have too many house painters in an area? Well, prices go down, service levels probably go up, and some of those painters have to diversify or move into other fields to make a living. Like most professions, an over-abundance of practitioners yields negative pressure for an increase of practitioners.

      What happens when you have too many lawyers in an area? Well, they just start taking on more frivolous cases and filing more suits, which does what? Creates work for opposing lawyers, which actually increases the demand for lawyers! They clog our legal system with crap like a credit card company clogs your email box with spam.

      Worse yet, having lost most of their senses of morality and ethics plying the legal trade, these bastards are the first ones likely to go into politics. That's where they really start creating extra opportunities for their fellow attorneys.

      Lawyers are pure evil. Oppose the sharks that are the Association of Trial Lawyers of America, and any politicians in their back pockets. They make the RIAA and the MPAA look like a bunch of guppies by comparison.

      • This is Garrison Keillor's view on lawyers:

        Lawyers are the closest thing we have to a conscience in this country; without them, big government and big corporations would run roughshod over us. Unlike journalists, lawyers are held to a code of ethics and when they violate it, they can lose their butts.


        This is from his final "Ask Mr. Blue" column [salon.com] on Salon.com [salon.com].



        While of course many of today's problems are caused by profligate lawyering, it is true that many lawyers get into the field with an honest intention to right society's wrongs. I love a good lawyer joke as much as anyone, but let's remember that they're human beings. Gandhi was a lawyer.

        • Lawyers are the closest thing we have to a conscience in this country; without them, big government and big corporations would run roughshod over us.

          And how would they do such a thing? With Lawyers! You think it's not "big government's" lawyers with their no holds barred attitudes pursuing Skylarov? It's certainly not a compromising attitude filled with compassion and a desire to settle the issue without litigation.

          Lawyers are our conscience? Wow, are those just words, or what? At best, lawyers are a necessary evil in our society. Typically, though, they're a morass of sharks, eager to create more work for themselves by filing suits and pushing for legislation that gives them more opportunities to file suits.

          Unlike journalists, lawyers are held to a code of ethics and when they violate it, they can lose their butts.

          More bullshit. They're held accountable by the American Bar Association, their own brethren. That's like saying that the Direct Marketing Association holds its members accountable for spamming.

          let's remember that they're human beings

          So was Timothy McVeigh. What's your point?

          As I said before, at best, lawyers are a necessary evil in our society, like hydrogen bombs. As with hydrogen bombs, ways should be sought to minimize their use in our country. Instead, the foxes are running the chicken coop in Washington, turning out as much legalistic soup as they can to keep us all dependent upon them.

          • >> Unlike journalists, lawyers are held to a code of ethics and when
            >>they violate it, they can lose their butts.


            More bullshit. They're held accountable by the American Bar Association, their own brethren.


            Until this, I assumed that you were merely misinformed and rabid. But now I see that you have absolutely no idea what you're talking about.


            The ABA has *absolutely* no power over individual lawyers. The overwhelming majority of lawyers have nothing to do with the ABA. This is handled by the Supreme Courts of the individual states, often by delegation (and by federal courts for matters in those courts).


            That's like saying that the Direct Marketing Association holds its members accountable for spamming.


            Again, please find a clue. YOu have *clearly* not looked *at all* at how disciplinary proceedings work. In many states, the pendulum has swung to far in the other direction. Two of my favorites from California:
            1) public discipline for kicking an ex-fiance during an arguement *7 years* earlier.
            2) A lawyer, who generally charged consultation fees, shared an ad offering free consultations. Someone scheduled an appointment without mentioning the ad. When the client arrived, he requested his consultation fee, and the client informed him that he'd called from the ad. The lawyer provided the free consultation, and the client complained to the bar (didn't like the advice, perhaps?). The lawyer was disciplined.


            THese are not isolated incidents when in California. Lawyers are regularly disbarred and suspended for actual misconduct.


            hawk, esq.

            • More bullshit. They're held accountable by the American Bar Association, their own brethren.

              Until this, I assumed that you were merely misinformed and rabid. But now I see that you have absolutely no idea what you're talking about.

              The ABA has *absolutely* no power over individual lawyers. The overwhelming majority of lawyers have nothing to do with the ABA. This is handled by the Supreme Courts of the individual states, often by delegation (and by federal courts for matters in those courts).


              Oh, jeez. Yeah, the key part of what you were saying is delegated. And who are they delegated to? A bunch of lawyers! Like the State Bar Courts rather than the American Bar Association. Sorry for the factual error, I don't know every lawyerly detail, but I know enough of lawyers and how they work to know that our system is flawed to so heavily rely upon them and allow them to run as much as they do.

              Just like you don't seem to know enough about HTML to set off your comments from mine, I may not know every little legal body's name and authority - but my knowledge is sufficient to know that there's a problem that we typically ignore in this country, and I won't be ridiculed to silence by someone just because my terminology may be off, when the gist of what I'm saying is true.


              THese are not isolated incidents when in California. Lawyers are regularly disbarred and suspended for actual misconduct.

              HAH! Those lawyers weren't disbarred for what they did, they were slapped on the wrist, and those cases do appear to be fairly isolated.

              Take a look at what it takes to be disbarred here [calbar.org] from a link I pulled up in Google. You've got to practically be a repeat child molester and the scum of the earth before the bar court will prevent you from practicing law on hapless victims.

              • You write "Just like you don't seem to know enough about HTML to set off your comments from mine...".

                Hey buddy, don't pick on people who can communicate in plain text. Plain text is not a crime. Some of us have fond memories of consuming an entire printer ribbon (and a day to get the paper fed properly) printing ascii versions of the Starship Enterprise crew, hanging the results on our bedroom walls and showing them off to our friends and family.

                Besides, there's no indication that Hawk doesn't know HTML.

                -Paul Komarek, who feels old at age 28.
        • I don't have the numbers, but I'd be very surprised if less than 90% of US legislators are lawyers. Lawyers write the laws, and they're not likely to write lawyer hostile legislation.

          If lawyers are a protection against big government, they are then supposedly a protection against themselves. Not the most reassuring arrangement.
      • Another thing that happens is the lawyers' wagews drop like crazy. I've heard of (yay rumors!) lawyers up here (Edmonton, Alberta) making just above minimum wage. Apparently now the U of A law school is raising the requirements to enter their law program, just to cut back a bit.
      • Lawyers are pure evil

        But remember, for every slimey lawyer there's a slimey plaintiff. The lawyers are just responding to the demand of the American public.

        If people want to illegally trade music, do we (rather, should we) blame Napster who merely provides a means to do this? So should we blame lawyers when they're just responding to a demand of a greedy sue-happy American?

        This isn't the Land of Moral Integrity, it's the Land of the Dollar. If there's a buck to be made, then the demand will be met. I'm not neccessarily happy with this system, but it's the one we got.

        My two cents. Thanks for listening.

        Komi

      • >A few years back, the statistic I heard was that the US has 5% of the world's
        >population, but 75% of the world's lawyers.


        This is complete and utter nonsense. We don't even have proportionally more lawyers than the countries that tend to be cited as examples.


        For example, Japan is frequently cited as having a fraction as many lawyers as the U.S. That only holds up until you look at the legal professions in the two countries. If you look at the number of Japanese who are the equivalent of members of the bar here, it's true. The problem with the statistic is that the overwhelming amount of work that would be done here by lawyers is done there by folks with legal training (including law school) who are not formally admitted. Additionally, they tend to be in-house rather than in law firms. When you count the folks doing the tasks we send to lawyers, both sides have about the same number of lawyeres as a portion of the population.


        While I'm at it, the total number of lawsuits filed in the U.S. per capita hasn't increased much over times; the U.S. has *always* been a litigious lot.


        hawk

    • Comment removed based on user account deletion
      • It takes time and money to craft a letter asserting your legal position -- whether you do it yourself or pay an attorney. It is unreasonable for ebay to require that you do additional work to comply with some internal procedure that they have developed.

        It takes a whole lot more time and money to file a frivilous lawsuit (meanwhile, the bootlegs are probably still being sold). I don't see how requiring someone to prove that their copyright is being violated before an auction is shut down is being unreasonable. Shutting down auctions (or websites) on the mere unsubstatiated accusation of infringement seems much more unreasonable. And I could see how that could very quickly turn into major legal and economic nightmare for Ebay.

        It would be like your neighbor telling you that that he would not remove his car from your driveway until you filled out that "Car Removal Request Form" that he developed.

        Except Ebay doesn't know you and it's not something so blindingly obvious as a car parked in the wrong driveway. Not to mention that there is a third party in this (the seller) who is being accused.
        • Comment removed based on user account deletion
          • Since ebay is not a court of law, it is unlikely that they will be able to enter a "guilty" verdict on the accused's criminal record. So please stop pretending that a commercial site must be held to the same standards of evidence as a criminal or civil court.

            I didn't say that they must be held to the same standards. I said that they should not be forced to take action based purely on heresay.

          • Clue Train! All aboard!


            If someone is offering copies of a never-released-on-DVD documentary for sale on DVD, it doesn't take Perry Mason to figure out that the copies are bootlegs.



            Clue train revisited


            First, Ebay needs to determine that what is being offered IS in fact that documentary (as opposed to something else with a similar name) and that, in fact, it has never been released as a DVD. Otherwise, they risk helping random individuals to harass other random individuals by just taking their word for it. Anybody at all can SAY 'that's a bootleg of my original work'.

      • Nope, It's rather more like asking your neighbour to remove his car from your driveway by pushing his doorbell, and waiting to talk to him, rather than talking to someone down the street that works with your neighbour, asking them to ask someone else who knows him to ask him to move his car, then calling the lawyer when he hasn't done it 2 hours later.
        Doing things the accepted way means that the people dealing with it are the people supposed to be dealing with it, and who:

        A) Know what they're doing
        B) Give a rats ass.

        When you go with the procedure, and keep the documents, you can prove what you were trying to do, and what the other was refusing, rather than emails/notes/calls to unrelated people.

        Malk
  • the title of the Post on /. is a bit misleading.

    the case did not beat the DMCA, it clarified it.

    there is a big diffrence.

    /. titles are worse thaan those on the local 10 o'clock new:
    tragity down town: somthing bad almost happened

    god people please stop the insanity

  • Makes sense... (Score:4, Insightful)

    by gamgee5273 ( 410326 ) on Friday September 07, 2001 @07:59AM (#2262785) Journal
    I think the question of whether Napster or other P2P systems are legal is clearer after this ruling.

    Think about it: If I provide you with a hammer with the purpose of you using it as a device to pound nails into wood, etc., I really don't expect to be sued if you use it to bash in a guy's head down the street. eBay wasn't created to facilitate the transfer of illegal copies of materials, though some might use it for such.

    The question the courts should be asking is: did the system - let's say Napster - purposfully come about to circumvent legal aquisition of music? If I sold you the hammer with the purpose of selling you an offensive weapon, I should expect to be a party to the demise of the former human on the sidewalk.

    So, Legal Eagles, were Napster, Gnutella, etc. created as P2P systems that were "turned evil," or were they "evil" from the get-go? Therein lies the answer, I think.

    • you are correct, and such was the undoing of Napster...


      only after it was found that Napster WAS in fact created with the intention of sharing copyrighted material was it convicted. A memo or some sort of communique between a few of the top people at Napster (Fanning being one of them, if i'm not mistaken) proved beyond the shadow of a doubt that the people who made Napster KNEW that it would be used to share copyrighted materials, and released it with the intention of capitalizing on that sharing process.


      The new incarnations (KaZaa, Morpheus, AudioGalaxy, etc) are probably guilty of the same thing...but the advantage they share is a lack of an intervening server like Napster used. Because it is truly peer-to-peer, the worst any court can do is stop the distribution of the software. But even then, the courts are powerless to stop it from being used, because it works independently of any central server or index database (as in Napster).

      • Yea, sort of. But Kazaa, Morpheus & friends ALL do log on to a central server which transmits a list of supernode IP's to the client program. If this server is taken down, NONE of the current clients could connect to the network.


        But hey, there's still The GiFT Project [sourceforge.net] Looks good to me.

    • If I sold you the hammer with the purpose of selling you an offensive weapon, I should expect to be a party to the demise of the former human on the sidewalk.

      That doesn't really happen though. If it did, every major gun manufacturer would be out of business. What else are guns for? Largely thanks to the DMCA, the analogy is broken.

    • What if you produce a gun that is intended for legal use (such as self-defense), and someone kills a bank teller with it... Instant lawsuit.
      • You think that this type of lawsuit hasn't been tried?

        Why do you think Smith & Wesson caved, when threatened with a suit by the Clinton administration? S&W was in dire-enough financial straits already that a lawsuit would have been overly expensive to fight, and they couldn't assume that it'd be laughed out of court, so they rolled ever.
    • I think that there is no question of Napster's intent. Their logo was / is a cat wearing headphones, IE: Napster was created for the purpose of sharing music. Their picking that logo was their doom IMHO.

      Of course Napster could be used for other things, and if you believe that I have this nice bridge in Brooklyn up for sale.....
    • Think about it: If I provide you with a hammer with the purpose of you using it as a device to pound nails into wood, etc., I really don't expect to be sued if you use it to bash in a guy's head down the street. eBay wasn't created to facilitate the transfer of illegal copies of materials, though some might use it for such.

      Yup yup. And this is definately an important precedent to establish. If the site were liable or responsible for infringements on copyright for the simple reason of their existence and that it's possible to distribute copyrighted materials over its service, we would find ourselves trying, based on that flawed rationale, to dismantle the entire Internet on those same grounds. Their site wasn't designed to counter DMCA interests, nor to violate copyrights, just as the 'net wasn't. The copyright holders' approach of using allegations of injury as part of an attempt to alter what (a) they have no jurisdiction over (the structure and existence of proprietary sites), and (b) is being done neither intentionally nor maliciously, needs definate refining.

      (from the /. story)
      So, Legal Eagles, were Napster, Gnutella, etc. created as P2P systems that were "turned evil," or were they "evil" from the get-go? Therein lies the answer, I think.

      I dunno. Did the 'net "turn evil", or was it "evil" from the get-go?

      The 'net just is. Try to expurgate from it anything someone finds offensive and we may as well be burning people at the stake. There are filters for the easily-offended. If you feel your copyright is being violated, get your facts together and take it on a case-by-case basis. If you're correct, you'll have a strong case and you'll succeed. If you have no facts, shut the fsck up. Simple as that.
  • I suspect the legal system is going to look at the two cases as seperate issues. They will view eBay as primarily a legal trading forum with only a small portion of the use being illegal, while Napster et al. are going to be viewed as primarily illegal programs with little if any legal usage. Time will tell.
  • see, ebay is selling material that they don't know is legal or not.

    napster is trading material, which they know is prolly illegal. but but, i own all those albums of the mp3's i downloaded.

    precedent? not after napster has started it's new service... too late to change that fate.

    also, wouldn't napster be precedent for this case? disclaimer: IANAL.
  • First, this should be a "duh"; Ebay as an 'ISP' should have such protection, and already had a good way to help remove copyrighted material if so claimed. This is just an extention of already-existing safe harbour laws.

    However, more importantly is that the judge threw out this case. There is no precident set by it, no question of the constitutionality raised, and only means that other judges can use it for deciding similar cases but cannot outright use this decision to finalize those cases.

    • Re:This really means little... (Score:5, Informative)

      by Rogerborg ( 306625 ) on Friday September 07, 2001 @08:15AM (#2262855) Homepage
      • more importantly is that the judge threw out this case

      You must be reading a different article, because the one linked to talks about a "ruling". The "dismissal" mentioned is a sloppy non-legal refernece to the request for damages, not of the case itself.

      Hint to moderators: read the referenecs before moderating comments "insightful" or "informative".

      • Unfortunately, at all the news sites that have this story, they use the same language. It is unclear to me whether the judge ruled in favor of ebay and closed the case, or if the case was dropped, based on that 'dismissed' claim.

        In either case, this is still a non-issue case, and simply tells ISPs that they do have a safe harbour clause to hide behind, but it's still yet a strong protection from the judical side.

    • Ebay as an 'ISP' should have such protection

      While I agree, this is not the case. There is a provision in the DMCA that says if an ISP is informed of DMCA violations by its users, it must either shut down that user, or risk liability for damages.

      There was an article not long ago about a couple who retruned from vacation to find their cable provider had cut their Internet access for the same reason (even though there was never a trial or case -- the ISP did it out of fear).

    • Re:This really means little... (Score:5, Interesting)

      by bwt ( 68845 ) on Friday September 07, 2001 @09:17AM (#2263179)
      EBay provides auctions, not internet service, so they are an "ASP", not an "ISP".

      When a judge dismisses a case, they do so based on legal reasoning that does set a precedent. This can come in one of two forms. A case can be dismissed for failure to state a claim for which the court has the power to provide a remedy, or it can be concluded on "summary judgement" which means that there were no disputed material facts requiring a trial so that the question is one of pure law. Both types of order are usually supported with a written opinion.

      I cannot tell which actually occured and the article doesn't link to the opinion.

      • EBay provides auctions, not internet service, so they are an "ASP", not an "ISP".

        Yes, eBay is an application service provider. Here, the application is an auction venue, which still counts as an "Internet service," or a service provided over the Internet. The term "Internet service" includes services other than just an upstream.

    • At least in the USA, when a judge "throws out a case" it doesn't just go in the wastebasket. He writes an opinion explaining why he threw the case out. That is no less a legal precedent than any other judicial opinion. What precedents do you think lawyers cite when they go into court and *try* to get the other side's case "thrown out"? That's right, they cite all the judicial opinions "throwing out" similar cases, and try to convince the judge that the case before him/her is like those.

      This is, in fact, an important opinion. Anyone have a link to the full text? I am involved in a case that may be impacted by it.

  • Import games (Score:5, Interesting)

    by slim ( 1652 ) <johnNO@SPAMhartnup.net> on Friday September 07, 2001 @08:04AM (#2262810) Homepage
    Does this mean they can start allowing import games to be sold? I've bid on a number of Japanese import Dreamcast and Saturn games, where the auction has subsequently been pulled. Turns out that Sega demanded that eBay pull any such auctions, suggesting that they "promote piracy", although afaik there is no law prohibiting the resale of import games.

    • Re:Import games (Score:4, Informative)

      by Rogerborg ( 306625 ) on Friday September 07, 2001 @08:20AM (#2262885) Homepage
      • Does this mean they can start allowing import games to be sold

      Read the article. The only thing tested here was eBay's takedown procedure, which the complainant arrogantly refused to follow. This ruling sets no precedents, not changes the situation one bit.

    • Video game companies, like all media companies, want complete control over what we see, hear, say, think, and spend our money on. Media makers fear being thought of as "un-American" by allowing un-Americanized culture United States. And of course they do the same thing in every other country.

      The irony is that letting content flow freely over borders would make them more money and goodwill, not less. It's movies like Life is Beautiful, C.T.H.D., anime, and others that wake us up and get us spending and gossiping. But the copyright holders feel that we, whether we are children or adults, can't handle anything but Mainstream USA. Or that if we can handle foreign culture, they demand that we pretend that we can't handle anything else.

      When the MPAA, RIAA and ISDA treat me, a fairly open minded 20 year old, like a closed minded 8 year old, I'll act like one: I'll steal everything they make!
  • In talking to some lawyer friends

    Isn't this an oxymoron?

    (My dad's a lawyer, and he taught me to love a good lawyer joke. YMMV.)

  • Try Catching the REAL criminals (Score:4, Insightful)

    by Thnurg ( 457568 ) on Friday September 07, 2001 @08:12AM (#2262841) Homepage
    Making unauthorised copies of a copyrighted work is illegal. That's fair do's, and a deal that I accept as right. However, it has become difficult to enforce.
    It's almost impossible to catch and prosecute people who make copies of CDs for their friends, and other such illegal acts.
    As a result, lawmakers and "content" providers fall over themselves making up daft laws and policies in order to combat the problem.
    Instead of targetting eBay, and firing the DMCA at them (which is itself a circumvention device - it enables the law to circumvent going after the REAL criminals, and instead sends them after those who attempt to enrich society) would it not make more sense to hang around eBay for a while, bid on unauthorised material (I REFUSE to use the word Pirated), offer to pay by cheque, and then send the heavy mob round to the address, thus catching the real criminal?
    Surely if such tactics could be used instead of lazily hiding behind the DMCA we wouldn't need such daft laws in the first place, and the REAL criminals would be in jail, instead of an innocent Russian hacker.
    • >Making unauthorised copies of a copyrighted work
      >is illegal.

      True. One need to know what is authorized and not though, for example by the law.

      >It's almost impossible to catch and prosecute
      >people who make copies of CDs for their friends,
      >and other such illegal acts.

      That would depend on which country one happens to live in, in Sweden for example it is not illegal (thus authorized) to make copies of music for example to close friends and family, it is part of the "fair use". The same govern most other copyrighted material types, computer software being an exception though.

      I think (but am not sure) the same holds true for other countries in Europe too.
    • Don't you think that's exactly what all copyright zelots would want? So, why aren't we doing it? It's called bandwidth. If the police attempted to arrest/charge *every* person that could be caught in the act of selling unauthorized copies, they would be 100% consumed doing only that. Let alone the lack of available bandwidth (oxymoron alert!) of the courts to prosecute those nabbed offenders.

      You have a few options: 1) Force the RIAA and other copyright zelots to rethink their distribution and profit models, making it easier and less expensive for people to gain access to their materials, 2) Update the implementation and interpretation of the copyright laws in the courts to better reflect reality, or 3) Give up and just let people buy gold-CD's of their favorite bands or video games.

  • Ebay != Napster (Score:1)

    by Anonymous Coward
    Ebay and Napster are, of course, very different. I believe the judge made his ruling via intent (as was the case with Napster).

    Ebay's purpose is, of course, to let users auction items online. A very small percentage ebay auctions are pirate material (>1%).

    Napster was created for mp3 sharing. While the program was used to trade uncompyrighted mp3s, the majority of the trading that went on was with copyrighted material. If you don't believe me, I might refer you to the supposed filters Napster installed. Remember that everyone simply changed one letter in the filename to skirt the filters.

    Just my 2 cents
  • at the first beam of sunlight.

    I really love this:
    Digital Millennium Copyright Act, a 1998 law meant to stimulate Internet commerce while protecting copyrights.

    Then in the next paragraph:
    But the other cases, such as the criminal prosecution of Russian programmer Dmitry Sklyarov, are based on provisions in the law that ban technologies that let people circumvent copyright protections.

    Now if you look at that again, you realize that Dmitry's company was the one engaging in "Internet commerce", but he's the one that got hammered.
    This, to me, seems to be decent reporting, but there is a bit of "slight of hand going on".
    If the DMCA was meant for commerce, why it it being applied to crypto, reverse engineering, education, etc.

    And I like this:
    EBay asked Hendrickson to submit a sworn, written statement Hendrickson refused, saying his general complaints should have been good enough.

    BWAHAHAHAHAHAHA.

    Two Words: Prove it! (or in lawyer speak "burden of proof lies of^H^H with the accuser".

    What gets me is that corporations are the one's fighting the battles of copyright holders, instead of the copyright holders themselves.
    (but, hey, the corps own the copyright holders, so same-same, i 'spose).

    I think if a corp holds the rights of an individuals IP/Copyright, then the individual should be the one doing the persecu^H^H^H^H^H prosecuting, not the corp. Mano e mano.

    Just some interesting things to ponder.

    Moose.

    SIG, SIG out loud, SIG, SIG it proud

  • E-bay auction item #857329457: DMCA licence (Score:4, Troll)

    by hardaker ( 32597 ) on Friday September 07, 2001 @08:21AM (#2262890) Homepage
    I say we put the DMCA up for auction on E-Bay as a "revenue protecting licence agreement text suitable for governments funded by large buisnesses". How much do you think it would go for?

  • Fork in the Road (Score:3, Insightful)

    by pagsz ( 450343 ) <pagsz81@yahoo.com> on Friday September 07, 2001 @08:33AM (#2262944) Journal
    While this victory by eBay is an important one, only time will tell why. Hopefully, it will help copyright law and enforcement get back to a more reasonable path. But, it could have the opposite effect. The MPAA and RIAA may donate some money to some influential congressmen (read: bribe) and add some more quasi-constitutional teeth to the monster known as the DMCA (God that sounds corny).

    Just waking up and still a bit cranky,
  • The point of an auction in the UK is for a property holder to launder any possibly stolen items.

    One must publicly state an auction is taking place and if you think any of your stolen property is there you go down and claim it. Any goods not claimed are now 'cleaned' of their 'stolen goods' status.

    Which is why every so often the cops auction off unidentified swag they have collected from burglars etc.

    I'm sure that more complicated copyright issues are not cleaned is this way but doctrine of first sale would apply.

  • eBay won because (Score:5, Insightful)

    by Omnifarious ( 11933 ) <{gro.suoirafinmo} {ta} {hsals-cire}> on Friday September 07, 2001 @09:02AM (#2263101) Homepage Journal

    eBay won because they were big, established, and profitable. They also had clear non-infringing uses of their service established.

    Napster was percieved as an upstart pirate of a company, and that's why they lost.

    I don't think it has a great deal to do with the letter of the law here, but how the companies were percieved by the respective judges.

    • eBay also has provisions for complainants to ask for the removal of a product. They've done that before, and even removed entire categories of merchandise to avoid controversy. They also have primarily non-infringing uses.

      Both the removal procedure (one that actually works) and the significant non-infringing use bits *are specifically mentioned* in the DMCA. eBay isn't advertising as an infringing service, either (marketing something as a copyright infringement device or service is sufficient to be nailed under DMCA, even if such marketing is an out-right lie, IIRC).

      Napster, in contrast, wasn't particularly amenable to having .MP3s removed (until they were forced to do so, they in fact claimed that they couldn't -- never mind that they control the search engine, and thus could 'hide' files by preprocessing results), and they were fully aware before-hand that they were going to be used primarily for infringement. BIG legal difference, and why eBay won this case and Napster did not.

  • It just occured to me... (Score:4, Insightful)

    by A_Non_Moose ( 413034 ) on Friday September 07, 2001 @09:27AM (#2263235) Homepage Journal
    (standard disclaimer, IANAL, etc).
    What all of these cases seem to come down to is *intent*. These are IMO, but consider:

    2600's intent was to play DVD's on linux and, possibly, allow for unrestricted viewing/skipping commercials, re-establish fair use.
    (the fact the judge of the case was in the employ of the MPAA *was* a conflict of interest, despite the judge saying it was not.)

    Dmitry's (and his company, I think) was the same...the intent was fair use, letting blind people have access to ebooks, restoring ones rights should the computer mess up (god knows that *never* happens) and allowing the same rights printed media has
    over electronic media...you have no rights to something you PAID for...excuse me?

    Felten's purpose was academic research, that was stifeld because of the DMCA.
    The intent was to teach his students (and others). The *intent* was education...hell, you can teach someone chemistry, from there they could make medicine, bombs, nerve gas.

    Whoever coined the phrase Digital Crowbar was correct...but it is the DMCA that is the crowbar, I'm afraid. (Digital Millineum Crowbar Assault?)
    People who don't see that are missing the point entirely.
    The Digital Crowbar referrence was to DeCSS, but this is incorrect, it is being used to bludgeon to death the rights of the consumer, the educator, the hacker the innovator or even the curious, and yes, even the business and individual.

    Moose.

    The problem with being esoteric is not that people are "beneath you" it is that your *thinking/reasoning* is so far above everyone else's. (think about it)
    • "Whoever coined the phrase Digital Crowbar was correct...but it is the DMCA that is the crowbar, I'm afraid. (Digital Millineum Crowbar Assault?)"

      This is pure genious. They should pay for their broken, misleading and Just Plain Evil(TM)analogy.


      (in a british Monty Python style womans voice) I don't like the Digital Millenium Crowbar Assault much.

  • So this doesen't affect the "Takedown" proc? (Score:3, Interesting)

    by dschuetz ( 10924 ) <david&dasnet,org> on Friday September 07, 2001 @09:59AM (#2263403)
    Damn. I was really hoping they could throw out the whole takedown procedure in the first place. Or does the ruling indemnify E-Bay from any liability at all, allowing them to throw away the procedure?

    I'm reminded of the posting here a week or two ago from someone who couldn't sell a personal copy of NT, CD and License, 'cause Microsoft kept complaining....

  • Double standards (Score:4, Insightful)

    by RogueAngel7 ( 250551 ) <RogueAngelSeven AT gmail DOT com> on Friday September 07, 2001 @10:10AM (#2263473)
    "The judge agreed with eBay's position that it is not like a real-world auctioneer that vouches for the items on sale, but rather more like a provider of the stalls at a flea market."

    how is it that the digital "flea market" owner isn't libal for renting a stall to person selling pirated material, but 2600 magazine is libal for linking to site that provides DeCSS code fragments? another example of the double standard that will bring the DMCA crashing down eventually.
    • Have you read actually read the entire DMCA?

      Are you aware that the law has protections for those that use working procedures for voluntarily removing infringing material?

      And that the law takes into account whether or not something is primarily aimed at infringement, or whether it is marketed as such?

      Do you believe that 2600 does *not* seek readers via hyping up a "cracking" approach, and that they would remove infringing material if asked (as the DMCA requires)?

      Do you now see how low *your* standards are -- apparently criticizing a law you apparently have not even read, using situations you don't even understand?
  • How, exactly, did eBay beat the DMCA? All they did was require the guy to follow the letter of the law. He didn't, so he lost. If he had given proper notice as required by the DMCA, eBay would have been required to remove the offending material.
  • so now someone needs to adopt a front end to ebay and a 'micropayment trading system'. so for each CD I "sell" I get to buy a CD being "sold" with the credits I get. Work out an anonymous payment system like this and we're back on Napster via Ebay auctions.
    :-)

  • We should have no sympathy... (Score:3, Interesting)

    by l1gunman ( 463233 ) on Friday September 07, 2001 @12:34PM (#2263980)
    for Mr. Hendrickson. eBay has a simple, easy to follow mechanism for removing "infringing" material, which he REFUSED to follow. Even in a court of law, he must AFFIRM that the material was his. This is all eBay asked him to do, and he refused, choosing instead to take his chances in court. Boo-hoo if he lost.

    I had a similar, if far more trivial, case. I posted an auction with a digital picture of the item being offered. Another seller "stole" my picture (and most of my clever auction listing text) to use in his own auction of an identical item. It was obvious that the image was the same (it was shot on my desk) and the words were clear plagiarism.

    A few notes exchanged with eBay, along with an "affirmation" that I took the image with my own digital imaging device, and the offending auction listing was history. It eventually re-appeared, with a poor(er) quality picture and revamped words, but my point had been made.

    Too bad for Mr. Hendrickson that he didn't comply with such an oh-so-simple request. It worked for me...

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