Sometime in the next few days -- perhaps Thursday or Friday -- expect that ICE and the DOJ will announce excitedly how they've seized another hundred or so websites that they'll claim were selling counterfeit NFL merchandise -- and maybe a couple sites that were planning to embed streams of the game. It's become a Super Bowl Weekend tradition because the feds have nothing better to do, apparently. Two local stories that came out this morning, however, suggest that the feds' priorities are out of whack. According to a CBS morning radio report in San Francisco, Homeland Security raided a guy selling 49ers merchandise on the street corner at a gas station. They told him that they knew he was selling counterfeit material and seized it... only to find out soon after that the merchandise was legit. Way to do your research, Homeland Security: Meanwhile, at the same time, there was actual fraud going on, as someone who spent $5,900 on Superbowl tickets on Craigslist was scammed and sent a note that just said "Goo Ravens!!! LOL" instead. Amazingly, the guy who sent that put a return address on the package and had spoken to the buyers a bunch on the phone. So you would think that, perhaps instead of swooping down on legitimate vendors selling legitimate goods, perhaps law enforcement could be out there arresting folks like this scammer instead. But, I guess that kind of stuff isn't as important to big companies like the NFL.

In our recent post about musician Joe Pug and other artists looking to get away from ridiculous service fees on tickets, commenter berick pointed out that Bob Dylan has come up with an interesting strategy to not just get around service fees, but scalpers as well: no pre-bought tickets to the show, just pay cash at the door:

When Bob Dylan says his just-announced, surprise show at the Warfield in San Francisco next Wednesday, August 25 costs $60, he means it costs $60 -- no service charges. No scalpers. No secondary market. In fact, perhaps as an effort to combat all complaints about the ticketing industry at large, there simply won't be any advance tickets to the show. Fans will pay $60 -- cash only -- on their way inside the venue, and that's that.

Of course, the downside to this is that if too many people show up (a decent possibility) you might not get in at all... Still, it's interesting to see how musicians are trying to get around activities that are seen as anti-consumer when it comes to pricing live shows.

Online ticket reseller StubHub says that sales revenues and volume were up significantly in the first quarter, as secondary ticket prices fell and lured in more buyers. The head of the company says he wishes he could have some control over the prices and keep them down so the volume (which drives StubHub's revenues) stays high, but the company really has no way to control that, since each individual seller that uses its platform will try to push the price as high as they can. In any case, Stubhub's booming business helps explain why Ticketmaster is trying to grow its own resale business, grabbing a cut from the original sale, and then the resale too. On a related note, the StubHub CEO says he's not concerned about Ticketmaster's increasing use of paperless tickets as a means to thwart scalpers: "There are ways that brokers can provide these tickets. They're not elegant. They don't provide a great experience to the fan... Where there's a will there’s a way, and there are both interested sellers and interested buyers." Inevitably, resellers will find a way around the system -- but somehow, as long as Ticketmaster finds a new revenue stream coming from it, it's hard to imagine the company will mind too much.

When it's not been busy trying to get into the scalping business itself, Ticketmaster has been trying to push scalpers aside. It claims it does this for altruistic reasons, but those claims generally fall on deaf ears, with many people believing it's simply trying to capture the scalpers' revenues. It's escalating the battle now by expanding its use of paperless tickets for concerts, and will use them for the upcoming Miley Cyrus tour, after an earlier series of shows sparked a flurry of complaints about scalpers. Ticketmaster has been testing the program for a little while, and trying to sell it as a convenient solution: instead of getting a paper ticket for a show, buyers don't receive one before the show, and instead must present the credit card they used to purchase their seats to get in. On its surface, this seems like a fairly effective way of cutting out scalpers by making their transactions with their customers much more difficult. But it's still not clear why Ticketmaster sees such a need to interfere with the market -- beyond its own self-interest, of course. It's hard to imagine that Ticketmaster really cares that scalping goes on, except for the fact that it's not making any money from it.

One inevitable (and legitimate) complaint about this system is that it not only takes out scalpers, but other secondary transactions, too. Want to buy tickets as a gift, or for your kid? You'll have to take the recipient to the show and go up to the gate with them. Buy tickets for yourself, but then can't go to the show and want to give them to a friend? You're out of luck, unless you and your credit card can get there (and, of course, there are no refunds). It seems likely that Ticketmaster will have to do something to rectify this, particularly given the political scrutiny they've attracted lately, and the solution seems obvious: Ticketmaster sets up a secondary market that lets people resell their tickets and reassigns them to a new credit-card holder (taking a cut for all the hard work, of course). The company has been growing its reseller business, in particular making efforts to become the "official fan resale" partner of various sports leagues and teams, and it's hard to see it not using paperless tickets as a way to expand this business. Ticketmaster hates scalping -- unless it's the one doing the reselling. But if it wants to benefit from the free market, the market should really be free, and not one established and controlled by Ticketmaster.

There's been plenty of complaining about how ticket scalpers for various concerts and sporting events have been scooping up all of the tickets for events and making it more expensive for fans to get those tickets. Of course, in many cases, companies like TicketMaster and the musicians themselves are in on the deal, pretending to offer "scalped" tickets that they're really selling themselves. With so much talk about this issue, you knew it was only a matter of time until some grandstanding politician got involved. In this case, it's New York's Chuck Schumer, who has introduced new legislation to try to limit ticket reselling (thanks to Eric Goldman for sending this over). It will require ticket resellers to "register" with the FTC, and then such official resellers will only be allowed to get tickets two days after the tickets go on sale.

It's difficult to see what good this does, other than create a bigger bureaucratic mess. If you don't think that the ticket resellers will figure out workarounds, you haven't been paying much attention over the past few years. Besides, the very fact that Ticketmaster thinks this is a good law is a pretty damning sign that it's not doing much to solve the problem, but is really designed to help Ticketmaster make more money.

It's still difficult to see why these issues can't be solved effectively without legislation. Bands can offer early tickets through fan clubs or mailing lists, or use other tools to make sure fans get tickets at lower prices. Besides, if the demand really is that high for certain tickets, what's wrong with letting the market determine that?

Michael_S points us to the news that the Vancouver Olympics -- no stranger to massive abuse of intellectual property law -- is now using copyright law to prevent ticket resales. Now, lots of places around the world have anti-scalping laws that forbid reselling of event tickets (or reselling them above a certain price). Vancouver, however, does not have any such law. No problem for the Olympics folks... they're using the special copyright they were granted on a whole host of common terms, including "Vancouver 2010" to sue resellers offering the tickets. Obviously, that's got nothing to do with the purpose of copyright law, but when you grant silly monopolies, don't be surprised when they're abused.

We've seen a few different lawsuits involving ticket reselling website Stubhub (owned by eBay). Last year, you may remember, a court forced Stubhub to hand over the identity of sellers of New England Patriots' tickets, despite the fact that Stubhub's terms of service protect users' privacy. One of the big questions brought up by various lawsuits is whether or not Stubhub is guilty of violating various anti-scalping laws. It seems like it would be clear that Stubhub, as the platform provider, is not liable and is protected by Section 230 of the CDA. And, in fact, that's what a court has just found, dismissing a complaint against Stubhub. However, as Eric Goldman notes at that link, this seems to contradict with at least one other ruling against Stubhub -- meaning that this is hardly settled law, and we should expect to see a bunch more lawsuits along these lines pop up before this gets worked out.

For those looking to score a reservation at the latest hot restaurant like New York City's The Little Owl, diners have to hit the phones exactly 30 days prior to their desired date and hope to be one of the few chosen. The result is less like planning a nice evening out, and more like trying to win a radio show call-in prize. Tablexchange.com is hoping to change that by allowing diners to buy and sell their reservations to hot restaurants in New York, San Francisco, and the Hamptons. The site, and others like it like Tablepronto (which covers San Francisco, Los Angeles, and Las Vegas), work without the consent or knowledge of the restaurants -- in fact, when you "buy" a reservation, you are actually instructed to not change the name or details of the reservation, so you must check in under the original reservation's name. These sites are reminiscent of reservation scalper PrimeTimeTables, which was hotly debated last year. Unlike these marketplace sites, PrimeTimeTables charges their members a $500 annual fee and uses their supposed "connections" to score the hard-to-get reservations (annoying some restaurants in the process). Tablexchange claims that they are less shady since they simply provide a marketplace that is more efficient than, say, Craigslist for this purpose. However, if the Tablexchange model gains traction, it could create a legion of professional reservation traders that would then compete with diligent foodies who are trying hard to get a reservation through normal (free) means.

This debate is much like the ticket scalping debate that we have seen here again and again. This market for reservations has simply surfaced the fact that there are people willing to pay for reservations that are currently free. With any limited good, charging money is a good way to decide who ultimately ends up with that limited good. That said, the power still lies with the restaurant -- if they are really against this practice, they are free to take measures against it, such as check their diner's IDs. Or, perhaps they can recognize the existence of this market and capitalize on it by setting aside a few tables that are "biddable." The Little Owl already does the converse today -- every night, at least three tables are set aside for walk-in customers, with the rationale that this practice maintains the "neighborhood" feel of the restaurant. So, it doesn't seem like a huge stretch to allow for some reservations to be bought and sold as well.

A month ago, we noted that the managers of some well-known bands were pushing for a rule that would require anyone reselling concert tickets to contribute some of their profits back to the musician. It's difficult to see how this is reasonable. If anything it sounds like double dipping. In a normal transaction, after you've sold something, you no longer have a right to have any say over what the buyer does with his purchase. If he sells it for more money, that's his to keep. That certainly seems fair to everyone. What is clouding this when it comes to ticket sales is that professional ticket resellers have been monopolizing the ticket business, figuring out ways (sometimes using questionable means) to buy up all hot tickets within seconds of them going on sale. They then quickly turn around and resell them, sometimes at greatly inflated prices. This is upsetting many fans for completely understandable reasons -- and so the government is trying to figure out what to do about these "touts" (which in the US we call "scalpers").

The recommended policy starts off well by saying it's not a good idea to ban ticket sales, but then supports requiring any resale to kick back some of the profit to the musician or sports team. That actually seems like the worst of all world's situation. That's unlikely to stop ticket resales and jacked up prices, and it actually rewards the artists for getting the tickets into the hands of resellers. It gives those performers a chance to double dip on much higher ticket sale prices, while allowing them to shrug and say that they really priced them at an affordable level. There are ways to deal with the issues raised by ticket resales, none of which require government intervention -- but it's difficult to see how the proposed solution does anything at all to help, while doing plenty to eat away at the concept of having ownership of a product you actually bought.

We've heard plenty of stories about organizations trying to ban the resale of tickets to events. It seems a bit silly to tell someone who bought a ticket to a concert or a sporting event that they're not allowed to resell it, but apparently some event organizers feel differently -- especially when the tickets are sold at greater than face value. The New England Patriots apparently are so adamant that people shouldn't be reselling their tickets for profit that they've convinced a court to force ticket resale marketplace StubHub to hand over the names of everyone who resold Patriots tickets for above face value. This seems like a rather large privacy violation -- and it clearly violates Stubhub's own terms of service (which is why the company fought it in court). You could understand being forced to turn over such information in a criminal lawsuit, but this is the New England Patriots requesting and getting the private info of sellers. For a team that just got into some trouble for spying on opposing teams, spying on their fans' private transactions doesn't seem like a step forward.