Techdirt. Stories about "ebay"

DailyDirt: Tuition Debt Is For Chumps?

Michael Ho — Thu, 23 May 2013 17:00:00 PDT

Crowds of students are graduating (or have just graduated) from college, and they might be a little nervous about how they're going to pay off their student loans. Student debt can be difficult to pay off, so some folks are trying to avoid it completely in a few novel ways. Here are a bunch of examples of students getting financially creative with their tuition bills.

In 2011, Richard Linder got a college degree from Excelsior College for about $3,000 -- without attending any classes in person. Excelsior doesn't require graduating students to have taken any of its own courses, so Linder transferred credits (many of them free) from a variety of online classes. [url]
Ken Ilgunas went to grad school at Duke and lived frugally in his van because he didn't want to get into debt again after paying off his undergrad loans. Ilgunas showered in the school's gym facilities, bummed electricity and internet from the libraries, and wrote a book (Walden on Wheels) about his lifestyle. [url]
Jonathan Hood paid for his graduate education at Auburn University with a TON of mail-in rebate offers. Buying stuff, redeeming the rebates and then eBaying the stuff... it takes a lot of time, but he wrote some automation software to help him keep track of all of it (and he'll likely be able to sell that someday, too). [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

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Med Express Apologies For Suing Customer, Says It Was A Mistake, But Doesn't Mention The Long List Of Similar Lawsuits

Mike Masnick — Thu, 18 Apr 2013 12:33:42 PDT

Earlier this week, we posted about eBay seller "Med Express" suing a customer for leaving accurate, but negative, feedback on eBay. We found the story from Paul Levy's original post on the Public Citizen website, and a bunch of other sites picked up on the story, including our friends at Popehat and Ars Technica.

Yesterday, Richard Radey, the President of Med Express made the rounds on all of those sites, including ours, issuing what may appear to be a heartfelt apology, saying that he never intended the customer to be a target, that the company fully supports any and all feedback, and that he had not read the actual lawsuit until the issue got attention. He also claims that he was trying to deal with a separate, but related issue in getting eBay to remove a "Detailed Seller Rating" which impacts how much Med Express has to pay. He claims that the "low ratings caused us to lose our Top Rated Seller Plus" standings, which could lead to "a potential fee increase of tends of thousands of dollars over the course of the year." And, he claims, the only way to remove those "is by court order" and he "was told that such court orders were not uncommon." He concludes:

The only person to blame here is me. You have spoken and I have listened. A terrible wrong needs to be righted. I am instructing our attorneys to drop the lawsuit. I want to assure everyone that you may feel free to leave any feedback on our company without fear of reprisal. I have learned my lesson.

That certainly sounds sincere. But is it? The first thing that struck me was that he said low ratings, plural -- not the single low rating we had heard about. And, indeed, Paul Levy has presented a compelling argument that Radey's apology raises more questions than it answers. First off, he discovered that Med Express has been filing similar lawsuits for years, all against customers who leave ratings that Med Express does not like. In one, quite incredible, case, they even sued a guy who left an accurate neutral review. Yes, it wasn't even negative. And the company still sued.

Of the current crop of lawsuits, the suit against Nicholls isn’t even the worst. I haven’t yet been able to see the original documents from the transaction on which Med Express’ lawsuit against Guam resident Tan Jan Chen is based, but the lawsuit against Scranton-area resident Dennis Rogan is over a two-word “neutral” buyer feedback stating “Order retracted.” Apparently, Rogan bought a piece of equipment on eBay but Med Express had to refund his money because, as it explained in a message accompanying the PayPal refund, “This should not have been still listed—we removed this item a few weeks back-it broke.” As in Nicholls’ case, the statement over which Med Express sued for libel was true, but even worse than in Nicholls’ case, Rogan had not even left “negative” feedback.

Rogan could have suggested that the advertising and sale of an item that the seller knew it could not deliver violated FTC rules for mail-order merchants, but he gave the company the benefit of the doubt while concluding, at the same time, that other customers ought to learn that Med Express cannot always be trusted to have the goods that it is advertising. His generosity did not prevent Radey from signing an affidavit averring that the neutral feedback and negative statement were “false,” attempting to get an injunction requiring that the feedback be taken down, and demanding an award of compensatory and punitive damages as well as attorney fees—not the $1.00 in nominal damages that Radey claims are all that he wanted his lawyer to seek against Nicholls.

Yeah, also, that signing an affidavit thing is a problem. Radey suggests in his apology that he didn't know what was going on, and seems to imply that this was a one off thing. But based on Levy's research, we see a long list of similar lawsuits -- and they include affidavits signed by Radey. So for him to claim he was unaware of what was going on seems quite questionable.

In the meantime, it appears that the customer who was at the center of the original lawsuit, Amy Nicholls, has found highly qualified pro bono help in the form of Tom Haren and Jeffrey Nye, and they've already filed a response and counterclaims. That also means that, even if Radey wants to dismiss this lawsuit, he can no longer do so unilaterally. If Nicholls, represented by Haren and Nye decide to pursue this, Radey may really regret trying to silence customers.

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eBay Banishes Demons, Djinns, Work-From-Home Schemes And Other Hellspawn

Tim Cushing — Fri, 17 Aug 2012 19:39:00 PDT

eBay's Fall Seller Update has just arrived, bringing with it several tables, FAQs, a bullet-pointed "Best Practices," and sadly, to the purveyors of certain goods, a list of categories that will no longer be welcome within the confines of ~~Paypal Fraud Central~~ eBay's listings.

Several "metaphysical" categories are being dropped as of August 30th, and sellers will have to remove listings for "spells, curses, hexing, conjuring, magic, prayers, blessing services, magic potions, [and] healing sessions." Sadly, eBay says that "transactions in these categories often result in issues between the buyer and seller that are difficult to resolve," resulting in the discontinuation.

The full list of dropped categories also includes the following items:

work from home businesses & information; wholesale lists, and drop shop lists

It's not often that someone (inadvertently) makes the clear statement that, yes, work-at-home "information" is about as useful as a Haunted Magical Male Dog Familiar.

I have no doubt that any issues arising between the sellers of these "goods" and the purchasers would be "difficult to resolve." I can only imagine the response team asking questions such as "Did you feel you weren't getting scammed quickly enough?" or "Do you feel that the three day period was inadequate to test proper bonding with the dog spirit contained in the aquarium decor rock you picked up at a highly inflated price?" This means that these sellers will most likely have to relocate* to the welcoming confines of ~~Human Trafficking, LLC~~ Craigslist, where buyers and sellers will be able to better match up vendors with victims, thanks to region-specific listings.

*Or, you know, just stay there.

While this news is likely disheartening to your average small businesswiccan and clickfraudster, it's probably for the best. The mantra around various suburbs, rural co-ops and unincorporated townships has always been "Put your money back into the community. Think Globally. Shop locally!" With these "alternative" businesses being shunted back to Craigslist (it's almost as if they never left!), citizens will be able to turn to their friends and neighbors for their next Incubus Succubus DJINN Summoning Spell or Doctor Job, Employment Website Sale. And that's the way things should be. Local merchants preying on local victims, all the while "thinking globally" about which offshore location would make a decent retirement spot.

Of course, as with any shakeup, there's bound to be a few victims. Due to eBay's culling of the categories, we may never know if this Haunted Doll Has Spirit Of An 18 YR Old Jogger Found Strangled To Death will ever find a happy home in which to "scream out loud and break things out of anger." But, if you act quickly, you could be the lucky person to give this possessed and needy doll "alot of attention," in order to prevent her from "screaming at night banging on the walls and knocking things over."

Perhaps picking up a cushy Doctor Job would give you the additional at-home time needed to give this doll your undivided attention, as well as allow you to get used to its "tendency to stare at people where it gets to the point of being very uncomfortable." Perhaps Haunted Doll could pitch in and babysit, giving you a much-needed night away from all the screaming, breaking and staring. After all, she is "good with kids and pets."

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SOPA/PIPA Wakes Up Internet Giants To Realize They Need To Be More Engaged In DC

Mike Masnick — Wed, 25 Jul 2012 15:55:09 PDT

Earlier today it was announced that a new industry trade association representing large internet companies, called The Internet Association, is going to be launching this fall, with Google, Amazon, eBay and Facebook as the charter members. Part of the thinking behind this group stemmed from the realization of how little influence various internet companies had in DC when SOPA/PIPA came along last year -- and a concerted effort to change that.

Former Congressional staffer Michael Beckerman was officially named this morning as the organization's president. I got to meet with Beckerman last week and hear some of the details about the group. To be honest, I have very mixed feelings about all of this. I tend to believe that this group will be a force for good in supporting an open internet and related issues. Beckerman was quite frank about why this new group absolutely needs to be focused on supporting the views of the public (because unlike in some other industries, when an internet company diverges from the public interest, it's very easy for its users/customers to go elsewhere). One of the major concerns we discussed was where the interests of internet users and the large internet companies might diverge, and how this organization would deal with those situations. He was pretty adamant that if they're not doing a good job representing the public's interest as well, then the organization isn't doing its job. Hopefully that is true, but obviously it's a claim that deserves close scrutiny as this organization ramps up. Hopefully, Beckerman will model the organization on the success of organizations like CEA, who have built up a very strong reputation in recognizing that by fighting to protect consumers they do the best in the long run for the electronics companies they represent. CEA has a long history of putting consumers first on various issues (even when you could make the argument that their own members feel differently), and it's done well for itself. The Internet Association would do good to follow that lead.

So while I think that this organization is likely to be very helpful in various fights to protect the open internet, I'm a bit disappointed that the state of politics today means that something like this is even needed. And, as always, I worry about large industry players working towards efforts to maintain their position, rather than supporting actual innovation. We've certainly seen large companies who were once innovative later turn around and fight against disruption and defend the status quo. Hopefully that's not what will happen with the Internet Association. Beckerman appears to have a good grasp on the issues, so I'm encouraged by the idea that there will be an organization like this in DC, focused exclusively on internet-related issues, even as I'm disappointed that it's necessary.

One bit of advice, since I know many folks here will automatically be allergic to the idea of any sort of new DC-based trade group, even if it's likely to be fighting against groups that seek to harm the open internet: one way to hopefully avoid a bad result is to engage with this new group. Help them continue to fight the good fight by working with them, rather than automatically dismissing them. Beckerman definitely seems interested in engaging people well beyond just the companies that are members of the association (which, as I understand it, is looking for additional members), and hopefully the more he engages with people who have a personal interest in an open internet, the more he'll be able to help.

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Dutch Appeals Court Says eBay Subsidiary Not Liable For Infringement By Users

Mike Masnick — Mon, 4 Jun 2012 15:31:00 PDT

While the Dutch courts forced local ISPs to block The Pirate Bay, kicking off a hilariously pointless and never-ending game of whac-a-mole, it's still never been fully explained why TPB -- as an intermediary -- should be liable for the infringement done by its users. In fact, a new ruling in a Dutch appeals court seems to suggest that neutral intermediaries deserve full protection from liability for infringement by their users. The ruling seems to focus more on trademark, but also appears to reference copyright as well. It involves an eBay subsidiary, Markplaats, and Stokke, makers of a high chair, who felt there was infringement on Markplaats. The case seems similar, in many ways, to a number of trademark cases filed around the globe against eBay.

Here, the court said that a neutral intermediary is not responsible for infringement done by users, and cited last summer's European Court of Justice ruling in the eBay/L'Oreal case. We found that ruling to leave open way too many loopholes that would make intermediaries liable, but thankfully, the appeals court in the Netherlands recognized the key issues, and insisted that Marplaats retains its status as a neutral platform even though it provides many more functions beyond just hosting. The court found that since the functions it performs don't favor either buyers or sellers, it still is considered a "neutral" intermediary.

The court also looked at whether or not certain remedies that Stokke was pushing for made sense, and noted that injunctions that required pro-active monitoring to prevent infringement did not make sense, in part because they seemed disproportionate and expensive. It similarly rejects a "notice and stay-down" provision (like a notice and take-down, but which also requires proactive blocking of any future attempts to post something infringing), noting that such a system would be costly and provide little real benefit.

Overall, this latest ruling seems to make sense, and properly focuses the liability question away from the intermediary tool provider. However, I do wonder how the court rulings against The Pirate Bay (and against neutral proxy services) make sense under a similar light.

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Is Selling Your Ultraviolet Code Copyright Infringement?

Zachary Knight — Mon, 23 Apr 2012 05:05:00 PDT

We have written many times about one of Hollywood's latest attempts at adapting to the modern digital age, Ultraviolet. Unfortunately for Hollywood studios, this service is not well received by people who have tried to use it. So what is someone to do with those unwanted free Ultraviolet codes that come in movie combo packs? You know, the Bluray, DVD and digital box sets that most movies come in. According to the Consumerist, one creative customer took to selling his unwanted digital copies on eBay. Unfortunately for him, eBay flagged his auction as copyright infringement and threatened his account if he listed it again.

This rightly confused him. After all, he was the legal owner of that unwanted, unused Ultraviolet redemption code. How could it be copyright infringement to sell that code to someone else, if you aren't using it? Selling or handing off that code is no different than selling or giving away the DVD copy that you would not use. Additionally, he pointed out many more eBay auctions doing the exact same thing, selling unwanted Ultraviolet codes.

What may make his case unique over the others is that he is selling a code for the recently released Mission: Impossible - Ghost Protocol. Since the movie has only been out for a few days now, Paramount may be working overtime to make sure that people are only buying the retail packages rather than just the digital version. Even if Paramount's end goal is to promote retail sales of the movie, flagging these sales as copyright infringement is tantamount to copyfraud.

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A Manifesto For Creativity In The Modern Era

Mike Masnick — Fri, 13 Apr 2012 07:18:00 PDT

Multiple people have passed along this fantastic manifesto of modern creativity that was put together by five curators of an exhibition for Les Rencontres Arles Photographie called "From Here On."

One friend noted just how inspiring that graphic alone was, but reading the more detailed manifesto is worthwhile as well. It talks about just how much the internet and digital technologies have changes our lives, and changed the way art and creativity works -- in undoubtedly positive ways. Here's just a snippet of the larger piece:

The growth of the Internet and the proliferation of sites for searching out and/or sharing images online—Flickr, Photobucket, Facebook, Google Images, eBay, to name only the best-known—now mean a plethora of visual resources that was inconceivable as little as ten years ago: a phenomenon comparable to the advent of running water and gas in big cities in the nineteenth century. We all know just how thoroughly those amenities altered people’s way of life in terms of everyday comfort and hygiene—and now, right in our own homes, we have an image-tap that’s refashioning our visual habits just as radically. In the course of art history, periods when image accessibility has been boosted by technological innovation have always been rich in major visual advances: improved photomechanical printing techniques and the subsequent press boom of the 1910s-1920s, for instance, paved the way for photomontage. Similar upheavals in the art field accompanied the rise of engraving as a popular medium in the nineteenth century, the arrival of TV in the 1950s—and the coming of the Internet today.

Digital appropriationism
Across-the-board appropriation on the one hand plus hyper-accessibility of images on the other: a pairing that would prove particularly fertile and stimulating for the art field. Beginning with the first years of the new millennium—Google Images launched in 2001, Google Maps in 2004 and Flickr the same year—artists jumped at the new technologies, and since then more and more of them have been taking advantage of the wealth of opportunities offered by the Internet. Gleefully appropriating their online finds, they edit, adapt, displace, add and subtract. What artists used to look for in nature, in urban flaneries, in leafing through magazines and rummaging in flea markets, they now find on the Internet, that new wellspring of the vernacular and inexhaustible fount of ideas and wonders.

What I love most about this is how inclusive it is, and how much of it is about recognizing and embracing what an amazingly creative time this is for artists. All too often, we hear of artists who decry such things, who complain about the fact that their club doesn't feel as exclusive any more. For artists and an art exhibit to not just embrace, but joyfully celebrate the way creativity works today, while recognizing how these tools mean that anyone and everyone are creating art all the time, is really wonderful to see.

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WaPo's Kaplan Scolded For Demanding $300 From Student Trying To Sell One Of Its Books On eBay

Mike Masnick — Thu, 1 Mar 2012 10:19:00 PST

A recent NY Times article about the changes happening at the Washington Post noted that, for years, the company was boosted by its subsidiary, Kaplan, famous for its test preparation offerings. However, thanks to some new federal rules, that business has been shrinking. Apparently Kaplan's lawyers are looking for other ways to pick up some spare cash -- such as ignoring the First Sale doctrine that lets people resell legally purchased books without it being a copyright violation.

After sending a nastygram with a demand for $300 to a student who put up a used copy (which she had purchased used as well), a letter was sent to Kaplan's lawyers from Paul Levy at Public Citizen explaining the law to Kaplan and refusing to give in to the crazy demands in the letter:

In fact, elisha8779 is a medical student who bought a used copy of the notes from another student. Regardless of whether Kaplan might have a contract action against that seller, Kaplan has no copyright claim against anybody, and it certainly has no claim against elisha8779. This issue was conclusively determined by the Supreme Court of the United States in Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908), a case that is still good law.... Consequently, in response to your "cease and desist," elsiah8779 will not return any books in her possession and she is certainly not going to send you $300 dollars for having exercised her statutory first-sale rights.

Levy then goes on to directly scold Kaplan for this move and suggests that the company not pursue similar claims against others:

Beyond that, you and your client should be ashamed of yourselves for trying to intimidate students into giving up their first-sale rights. elisha8779 is not planning to file a class action for a declaratory judgment of non-infringement--she wants to get on with her life--but we are going to be looking for other clients who may not be so charitable toward Kaplan. I strongly suggest that you stop sending these frivolous demands.

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Class Action Lawsuit Filed Against eBay Because Of The Way Its Auctions Work

Mike Masnick — Fri, 6 Jan 2012 06:07:35 PST

It seems you can find people to file a class action lawsuit against just about any crazy thing these days. The latest, as pointed out by Eric Goldman (with the complaint embedded below), is someone filing a class action lawsuit against eBay claiming all sorts of violations for the way eBay's auction system has always worked. Here's the basic issue. eBay developed a rather clever system back when it launched to handle bidding. You don't just put in your next bid -- you put in what's supposed to be the maximum you're willing to bid on an item. But the auction system itself always goes for the highest bidder's lowest increment above the second highest bidder. If that sounds confusing, let's take the language from eBay's own site, and quoted in the lawsuit:

The current bid for an item is $10.00. Tom is the high bidder, and has placed a maximum bid of $12.00 on the item. His maximum bid is kept confidential from other members.

Laura views the item and places a maximum bid of $15.00. Laura becomes the high bidder.

Tom’s bid is incremented to his maximum of $12.00. Laura’s bid is now $12.50.

We send Tom an email that he has been outbid. If he doesn’t raise his maximum bid, Laura wins the item.

This is how eBay has always worked. And it's a perfectly reasonable business model choice that eBay did because it makes life much more convenient for users. Rather than having to put in place each bid, you can set the most you're willing to pay and rest assured that you'll just have to pay the next increment above the second highest bid. Of course, in practice, the bidding rarely works that way, with people often feeling pressure to raise their highest bid, or wait until the very end to snipe the bid. But, overall what could possibly be the problem with this system?

Well, according to the lawsuit, this all seems to be a conspiracy to defraud the seller of the full $15 that Laura bid. The fact that she only pays $12.50 is apparently due to eBay failing to "act neutrally" and instead "inject[ing] itself into the transaction by intercepting the bid aamount [sic] before it is received by the seller." Seriously.

Once again, this is how eBay has worked forever, and it's pretty clearly explained on the site. It's a business model choice that makes plenty of sense. It's not some breach of contract, or "tortious interference" or "unfair competition" or "unjust enrichment." It's just a business model. In fact, if eBay were really being nefarious, wouldn't it set things up the other way? After all, since eBay gets fees as a percentage of the sale price, if the company were really being sneaky, it would try to force everyone to pay the higher bid. If anything, it seems like eBay's structure is designed to help people, not to unjustly enrich itself...

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Facebook, Twitter, eBay & Other Big Internet Companies Come Out Against SOPA

Mike Masnick — Tue, 15 Nov 2011 10:44:00 PST

While Google has been pretty vocal about its complaints concerning PROTECT IP and SOPA, and Yahoo, LinkedIn and Zynga have expressed concerns elsewhere, the silence of large companies like Facebook, Twitter, eBay, Mozilla and AOL had been unfortunate. That appears to be changing. As a group, they have now all sent a letter to the key sponsors of both bills, arguing that the approach here is the exact wrong approach, and will do significant damage to the parts of the economy that are innovating and creating jobs today:

We are very concerned that the bills as written would seriously undermine the effective mechanism Congress enacted in the Digital Millenium Copyright Act (DMCA) to provide a safe harbor for Internet companies that act in good faith to remove infringing content from their sites. Since their enactment in 1998, the DMCA's safe harbor provisions for online service providers have been a cornerstone of the U.S. Internet and technology industry's growth and success. While we work together to find additional ways to target foreign "rogue" sites, we should not jeopardize a foundational structure that has worked for content owners and Internet companies alike and provides certainty to innovators with new ideas for how people create, find, discuss, and share information lawfully online.

We are proud to be a part of an industry that has been crucial to U.S. economic growth and job creation. A recent McKinsey Global Institute report found that the Internet accounts for 3.4% of GDP in the 13 countries that McKinsey studied, and, in the U.S., the Internet's contribution to GDP is even larger. If Internet consumption and expenditure were a sector, its contribution to GDP would be greater than energy, agriculture, communication, mining, or utilities. In addition, the Internet industry has increased productivity for small and medium-sized businesses by 10%. We urge you not to risk either this success or the tremendous benefits the Internet has brought to hundreds of millions of Americans and people around the world.

Can't wait to see the usual commenters stop by to insist that basically every big company on the internet is only saying this because they're dedicated to infringement. But the real question is: at what point does Congress realize that there's real opposition to this bill from one of the few industries out there that's actually doing well these days?

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The Coming Fight Over Sales Tax For Online Retailers

Mike Masnick — Thu, 3 Nov 2011 23:34:47 PDT

For years, we've written about the back and forth in various attempts by states to force Amazon to collect sales tax for purchases in states where it doesn't have a presence (or, well, claims it doesn't have a presence). Existing law says that states have no right to force out of state businesses to collect sales tax for transactions in states in which they have no presence. This rule came out of questions concerning the requirements on catalog retailers, but easily carried over to online retailers. For years, two main groups have been very upset about these rules: brick-and-mortar retailers and state governments. The brick and mortar retailers, of course, don't like having to compete with retailers who don't have to charge sales tax, since it puts them at a disadvantage. State governments hate it, of course, because they want more tax revenue anywhere they can find it (even if it harms their constituents).

Of course, there are some good reasons for not forcing out-of-state retailers to collect sales tax in states where they have no presence. There's the general question of the taxing authority of a state to reach cross borders to get a sales tax, for example. Related to this is the massive complication in collecting such a tax. There are so many different local tax rules, requiring any single entity to understand them all seems like a complete compliance nightmare. Separately, there's a question of the purpose behind such a tax. Generally speaking, a sales tax is supposed to cover the public infrastructure that a retailer uses -- e.g., the streets and clean downtown area that make it easy for customers to come to the store. But with the internet, the retailers aren't really getting the benefit of all of that, so why should they be taxed for it? You can argue that they still get some of the benefits in the roads/infrastructure used to deliver the goods, but that seems like a much more limited benefit. Finally, there's a more recent argument: we want to encourage growth in the internet sector, because it creates wonderful efficiencies and positive externalities that we should encourage. The brick-and-mortar folks really hate that one.

Anyway, for years there have been a series of fights and attempts to "deal" with this -- mostly pushed by the brick and mortar guys. Amazon seems resolved to accept having to collect sales tax, but has pushed for rules to simplify such taxes across borders to avoid the compliance nightmare. Unfortunately, it looks like the brick-and-mortar guys may be getting their wish with a new bill that will make it easier for states to force out-of-state retailers to pay up... and without many of the safeguards or requirements for simplified/standardized rules across states. While Amazon has suggested it might be okay with this, it could be a massive pain for any smaller retailer. In an age of micro-retailers -- think the musician selling products off his or her own website -- having to comply with every states' tax laws is going to be huge pain.

Thankfully, it appears there's at least some opposition to this. Senators Ron Wyden and Kelly Ayotte are trying to pre-empt the legislative effort, by getting a resolution through that would say that the Senate won't pass "burdensome or unfair" taxes on internet retailers. The resolution points out that such out-of-state tax requirements could become a massive burden on smaller players, and given today's unemployment situation, it seems like the wrong time to put in place such taxes:

Whereas any Federal legislation that would upset the free and fair Internet marketplace and allow State governments to impose new, onerous and burdensome sales tax-collecting schemes on out-of-State, Internet-enabled small businesses would adversely impact hundreds of thousands of jobs, reduce consumer choice, and impede the growth and development of interstate commerce; and

Whereas at a time when national unemployment numbers are high and businesses across the country are struggling to keep their doors open, the Federal Government should promote pro-growth and pro-business policies instead of enacting legislation that extracts additional taxes from our Nation’s Internet-enabled businesses

For a while now, it's seemed like such taxes were going to be unavoidable, even as they could end up creating significant problems for small businesses and individuals who sell items directly. Hopefully this small bit of opposition helps those on the other side think twice about the unintended consequences of a massive new tax regime for small businesses online.

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Monster Cable Claims EBay, Craigslist, Costco & Sears Are 'Rogue Sites'

Mike Masnick — Wed, 5 Oct 2011 13:34:46 PDT

When we talk about how dangerous PROTECT IP is as a censorship bill, we're often told that we shouldn't worry so much, because it's only targeted at "rogue sites" and thus wouldn't impact any legitimate sites. We're told there's nothing about rogue sites that is worth defending. And yet, as we've seen with the list of "pirate" sites that GroupM put together with help from the music and movie industries, their definition of a "pirate" site is expansive in the extreme. It included the Internet Archive, Vimeo, Soundcloud and a ton of blogs and news sites, including the famed Vibe magazine.

And don't think it gets any different when you hop over to the trademark/counterfeit side of the debate. In Tim's post about Monster Cable lobbying in favor of PROTECT IP, as an aside at the end, he notes that on Monster Cable's own list of "rogue sites," eBay and Craigslist top the list. And it doesn't stop there. Retailing giant Costco is on the list. As is Sears. Also some Backpages sites are listed as well (Backpages is a Craigslist-like classifieds system). There's also FatWallet, which is one of the most popular "deal" listings sites out there. There's also PriceGrabber and ComputerShopper -- popular legitimate sites for comparison shopping and computer purchases. These are not "rogue sites." These are legitimate companies that Monster Cable appears to have a vendetta against, because they allow for or promote the resale of perfectly legitimate secondhand goods.

In other words, for all the misleading whining from Monster about how it needs PROTECT IP to stop "rogue sites," you can see from Monster's own definition of what it considers a rogue site, that it would like to use such things to stomp out legitimate secondhand sales. Now, you can argue over whether or not these sites would pass following a judge's scrutiny under PROTECT IP, but we've seen judges rubber stamp similarly questionable claims against blogs in the past as being "rogue sites."

If you look at both the GroupM and the Monster lists, one thing becomes clear: these companies are defining any site they can't control as being a "rogue site." This isn't about stopping "piracy." It's about using the law to stomp out channels that they can't control. This is a key point that becomes obvious if you spend any time looking at the details of this law. It's not about protecting "IP." It's about protecting old business models that were based on absolute control of the channel. The complaints of the Universal Musics and Monster Cables of the world isn't really about counterfeits and piracy, but about the fact that they no longer have absolute control.

And they're just using "piracy" as the wool to pull over Congress' eyes to pass a law that tries to give them back control over the channel... by declaring tons of perfectly legitimate sites "rogue sites."

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EU Court Disagrees With Pretty Much Every Other Court; Says Ebay May Be Liable For Third Party Trademark Infringement

Mike Masnick — Wed, 13 Jul 2011 01:06:25 PDT

The luxury goods folks have been on the legal warpath against Ebay for a while, because they don't like the fact that anyone else can make a market for their product, other than "authorized" distributors. They hide some of that by claiming that their real concern is in "counterfeit" products being sold, but the truth is they want to control the full distribution chain. For years, though, they've been bringing a variety of lawsuits against eBay, trying to establish that the company has some sort of weird requirement to magically know if a good someone is selling is counterfeit (the real goal is to get Ebay to block all sales of their products, and if they can get liability for any infringing works, then Ebay has incentives to block all such products).

In the US, the war has been waged by Tiffany, which resulted in a big fat loss at the appeal court level and no interest from the Supreme Court in hearing an appeal. The courts correctly and smartly pointed out that general knowledge that people infringe via the site is not enough to say that the site should have to police the products -- especially since it had no clue how to tell what was really infringing and what was legit. Furthermore, Ebay bends over backwards to take down counterfeit products when it becomes aware of them, and also has a whole program to make it easier for trademark holders to alert the company of counterfeit goods.

In Europe, the battle has been waged by L'Oreal. And, even though European governments and courts seem to have a more welcoming view towards third party liability than US courts, for the most part, L'Oreal has lost many, many times in Europe (it's filed similar lawsuits in a whole bunch of countries). However, it appears to have finally found a slightly sympathetic court.... and tragically, it's the European Court of Justice (the top European Court), which has ruled that Ebay can be liable in certain cases, if it's determined (a) that the goods for sale target the EU market, if the company is considered to have played "an active role" and if it "has enough information" to determine that the use is infringing. Now this isn't quite as bad as some of the press have made it out to be, as the Court still says there are protections... but it does outline key exceptions to those protections, and the key question is on which side of the line Ebay falls.

Ebay claims that it's in compliance and thus not guilty of such infringement, but I'm sure L'Oreal will be pushing the case back in the specific court (this is the UK case). Still, just opening the door like this to a rather subjective standard of "active role" and having "enough information" to know that something is infringing, seems wide open to abuse... and could lead to Ebay making its service a lot less useful, just because some luxury brand giants hate competing.

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PayPal Sues Google Over Mobile Payment Execs; Where's The Line Between Non-Competes & Trade Secrets

Mike Masnick — Fri, 27 May 2011 16:21:00 PDT

On the day Google announced its big mobile payment system, PayPal announced that it's suing Google and two former PayPal execs who went to Google and were apparently heavily involved in this effort. The focus is apparently on Osama Bedier, who apparently had spent the last couple of years at PayPal trying to do a deal with Google to power Google's offering... before jumping ship to lead Google's own effort (which does not apparently use PayPal). Of course, as we've discussed many times, non-compete agreements are unenforceable in California, because California believes that you can't take away someone's right to work.

What this really does is highlight the fuzzy line between "right to work" concepts and trade secrets. That's because California does have strong trade secret protections. But if an employee has a right to work... how do you remove any "trade secrets" from their previous job from their brain? There are some details -- including accusations of transferring confidential documents to a computer right before making the job switch -- that certainly look bad. But, on the whole, I tend to think these kinds of lawsuits are a waste of time. Focus on actually competing in the market, rather than suing competitors. Frankly, the world needs more payment solutions, and if there's some competition, then it should force all players to improve their game.

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How Many Times Will Skype Be Acquired For Too Much Money By Big Tech Companies With Little Strategic Synergies?

Mike Masnick — Tue, 10 May 2011 05:33:36 PDT

You may recall, back in 2005, that the tech world let out a massive "Huh? when eBay acquired Skype for somewhere around $2.6 billion. eBay kept insisting there were synergies there, and lots of people tried to puzzle out what those might be. Calling people to discuss auctions? Auctions embedded in your phone? There was some vague talk about China, but it amounted to "lots of people use Skype in China," and didn't get much further than that. Just a couple years later, eBay was already writing off the supposed synergies and then gave up looking for the synergies altogether. Not so long ago, it spun the company out, and there were plans for an IPO.

Just a few days ago, there were rumors that both Facebook and Google were considering buying Skype at around $3 or $4 billion. In both cases, you could make out some potential synergies. Facebook has become a huge communications platform, and adding more voice capabilities could be compelling. Google, obviously, has Google Voice and owns Skype-clone Gizmo.

However, at the last minute, it appears that Microsoft swooped in and more than doubled the asking price, paying $8.5 billion. And, we're left with deja vu. It seems we're not the only one asking how this makes sense. It certainly has all the earmarks of a big company with too much cash feeling the need to do something to be considered relevant, especially after hearing that two of the newer darlings in the tech world were considering the buyout themselves.

Are there synergies here that make sense? Well, certainly more than existed with eBay. But enough to make it worth so much more to Microsoft than Facebook or Google? I can't see it. Also, almost everything I can think of where Microsoft might integrate with Skype would likely make the product more annoying and less valuable. And while Skype is definitely a great product -- I use it all the time -- and usage has steadily grown over the years, the company is still having trouble finding profits. $8 billion is a lot to spend on a company that keeps using up the red ink on its income statements.

Perhaps Skype just puts something in the water it serves in conference rooms that makes big tech companies go loopy, increasing how much they're willing to pay and seeing magic synergies where none really exist.

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Phone That Can Search The Internet & Display Ads Patented; Everyone Sued

Mike Masnick — Tue, 5 Apr 2011 15:08:04 PDT

Looks like it may be time to update our patent thicket graphic. Another company that's not actually doing anything in the space is suing everyone who is. A company named H-W Technology apparently holds a patent (7,525,955) on an "Internet protocol (IP) phone with search and advertising capability" and has sued Apple, RIM, Google, Amazon, eBay, HTC, LG, Smasung, Microsoft, Nokia, Verizon and others for violating it. Because, you know, I'm sure no one possibly could have figured out how to put search and ads on a phone without this patent.

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Class Action Lawsuit Filed Against Coach Over Bogus Takedowns, Trademark Bullying

Mike Masnick — Mon, 14 Feb 2011 07:24:09 PST

We've seen so many cases of trademark bullying, and it's so rare to see people fight back, that it's interesting to see it happening -- and even more surprising to see it done as a class action suit. Eric Goldman points us to the news that this class action lawsuit has been filed against luxury goods maker, Coach, for apparently issuing takedowns to eBay for perfectly legitimate second-hand sales, while also threatening those who put up those items. I'll let the lawsuit itself (the full filing is embedded below) explain the basics:

Without investigating the validity of its allegations, Coach wantonly accuses consumers of infringing its trademarks by selling counterfeit Coach products. Coach apparently monitors online retailers such as E-Bay, looking for ads from consumers selling second hand Coach products. In response to such ads, Coach delegates a New York law firm to launch a threatening letter to the consumer. These letters accuse the consumer of trademark infringement, threaten legal action, and demand the immediate payment of damages to Coach in "settlement" of Coach's threats. At the same time, Coach (or its New York law firm) informs the online retailer that infringing merchandise is being sold on its website. In many cases, this causes the online retailer to involuntarily remove the allegedly infringing ad, and to disable the consumer's online account. This destroys any chance the consumer had to sell the Coach product second hand, and otherwise damages the consumer.

In many cases (such as that of the lead plaintiff identified here), Coach's allegations of infringement are flatly false. It appears that Coach fails to conduct even a minimally reasonable investigation into its counterfeiting claims before threatening legal action. For example, the lead plaintiff identified in this Complaint is a former Coach employee, who owned, and tried to sell, genuine and legitimate Coach products It was entirely legal for her to do so. Coach's threats against her were false, reckless, and unwarranted.

We've definitely seen attempts to use trademark law to block the legitimate sale of secondhand goods. It's a bad trend that needs to be stopped, and hopefully lawsuits like this might do the trick. Unfortunately, in the past few years, we've seen some really underhanded tricks used by producers to effectively block secondhand sales and first sale rights through legal trickery. It's not clear if that kind of defense will be used here.

The lawsuit itself wants a declaratory judgment that selling legitimate Coach goods secondhand does not infringe... but also includes a defamation claim, pointing out that accusing someone of infringement when it's not true could be seen as libelous. That part seems like a stretch, but I'll be curious to see how the court rules.

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Paul Allen Files Amended Patent Lawsuit; Shows It's Even More Ridiculous Than We Originally Thought

Mike Masnick — Wed, 29 Dec 2010 15:03:00 PST

Back in August, many people were surprised that Paul Allen had suddenly decided to go full on patent troll, using a bunch of patents he had received as part of his complete business failure, Interval Research, during the 90s. Interval was supposed to be kind of like Xerox PARC, a research center focused on inventing the future, but the plan was to actually commercialize what came out of the labs. However, in the end, Interval did little of anything and, after spending many of Allen's Microsoft millions, shut down. Yet, years later, he suddenly starts suing a ton of companies over incredibly broad patents? In this initial lawsuit (apparently more are planned), he sued Google (and separately, YouTube), Apple, AOL, eBay, Facebook, Netflix, Yahoo, Office Depot, OfficeMax and Staples. Earlier this month, we noted that the lawsuit had been dismissed due to the failure by Allen to actually explain how these companies violated his patents. Of course, as mentioned at the time, he was free to try again, and everyone knew he would. He has now filed that amended complaint, complete with the "details" of what each of these companies has done that's infringing, and it's even more ridiculous than we originally thought.

As a reminder, here are the patents he's suing over:

6,263,507: "Browser for use in navigating a body of information, with particular application to browsing information represented by audio data."
6,034,652 & 6,788,314 (really the same patent, involving continuations): "Attention manager for occupying the peripheral attention of a person in the vicinity of a display device"
6,757,682: "Alerting users to items of current interest"

We have the full amended filing embedded below, but his claims of what's infringing are ridiculously broad. For the first patent (the '507 patent), he basically seems to be claiming that any website that offers a listing of "related items" or uses any kind of spam filter is infringing. Basically, that's a huge percentage of content-based websites out there. Does anyone really (honestly, now) believe that without such a patent, the idea of "related content" or spam filters would never have been developed?

Then there's the next two (related) patents ('652 and '314), about "peripheral attention." According to Allen, the use of products that pop up a little notifier in the corner of your screen window violate this patent: so AOL, Google and Yahoo all violate this because of the little instant messenger/email pop up tools they offer. Apple supposedly violates this because of the Apple Dashboard and related widgets that pop up information such as sports scores and weather. Really, Paul? You want to claim ownership of any system that pops up information in the corner of your screen? That's sickeningly broad.

Finally, the last patent (the '682 patent), he appears to be claiming that it covers making recommendations to users on things they might like. So, the fact that AOL will alert you to products you might like? Infringing. Same with all the other companies, who all offer basic recommendations of one form or another because offering recommendations is one of the most obvious things out there.

To say that Allen's interpretation of what these patents cover is extraordinarily broad would be to downplay the concept of broad interpretations of patents. Allen's interpretations are so broad as to make a mockery of the entire patent system, and how ridiculous concepts put forth in a patent can (years later) cover a significant number of all websites out there, all doing obvious things to make their websites useful to users. Honestly, reading through the details makes me wonder if the conspiracy theory that some have put forth -- that Allen is doing this just to demonstrate how silly patents have become -- seems somewhat more plausible. I still don't really believe that, but either way, this lawsuit certainly represents the madness of the patent system.

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Apple Has eBay Kill Off Auctions Of Steve Jobs Figure It Doesn't Like

Mike Masnick — Mon, 27 Dec 2010 04:13:18 PST

Remember, a few weeks back, how Apple went after a Chinese company making Steve Jobs figurines and forced it to stop selling them? As you might expect, the attention from the legal threat only served to create much more interest in the figurines, and the few folks who got their hands on them before the offering was shut down, quickly moved to eBay, where they started selling for thousands of dollars... until Apple complained and eBay killed all of the auctions under its VeRO program. This actually strikes me as a bit odd. I could see Steve Jobs making the request, but should eBay listen to a company that requests a takedown of an individual's likeness, even if that individual is the company's CEO? After all, Apple does not own Steve Jobs' likeness... Of course, we still think it's silly that Apple's so worked up about all this in the first place.

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eBay Shutting Down Rubik's Cube Knockoff Sales Due To Patent Infringement Claim (Not From Rubik's Maker)

Mike Masnick — Mon, 20 Dec 2010 15:09:37 PST

Bram Cohen, who's known for doing quite a bit of 3-dimensional puzzle design, alerts us to the news of eBay shutting down a bunch of auctions over some Dayan Guhong and Lingyun puzzles. The Dayan Guhong and Lingyun puzzles are, basically, quite similar to the traditional Rubik's Cube, but designed to work a bit easier. You can see a video explaining the Guhong, which shows how it's faster than a traditional Rubik's cube.

Now, there are two separate, but equally interesting points of discussion here. The first is that eBay is apparently getting into the patent enforcement business. This case involved the use of eBay's Verified Rights Owner (VeRO) Program, which is usually used by trademark owners to get counterfeits and such removed from eBay. I was unaware of it being used over patents until this case, and that's a lot more troubling. A trademark claim is a lot easier (though, still not perfectly easy in many cases) to judge. A patent claim is a lot more difficult. Is eBay really claiming to be able to determine if a product on eBay infringes on someone else's patent? And then is willing to kill auctions because of it? Furthermore, if the patent holder is really upset, shouldn't it be going after those who are actually selling the cubes in question, rather than having eBay get in the middle?

The other issue is that there's even a patent for this at all. The patent in question, 7,600,756, is somewhat well known in puzzle circles, in that it covers similar cube puzzles that go beyond the traditional Rubik's 3x3x3 all the way up to 11x11x11. Even if you believe that everything from 4x4x4 to 11x11x11 are unique and patentable, it does seem to be a bit of a stretch to claim that the 3x3x3 is patentable. There are some differences in how the patent holder, Panayotis Verdes, designed his 3x3x3 from the original Rubik's, but it was a design innovation (making certain parts spherical instead of cylindrical) that many toy puzzle designers came up with independently at about the same time (which would suggest "obviousness" and thus make it not patentable). Related to all of that, the company holding this patent, V-Cube, is not even making a 3x3x3, though it is making a variety of other cubes. So it's basically trying to kill off the sales of the standard 3x3x3 cubes, even though they don't compete with V-Cube.

Of course, the history of Rubik's Cube is full of patent battles as well. It all kind of makes you wonder, what's wrong with just letting puzzle makers come up with cool puzzles and then letting them compete in the market?

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Paul Allen's First Attempt At Patent Trolling Flops As He Forgets To Say Who Actually Violated What And How

Mike Masnick — Mon, 13 Dec 2010 02:46:22 PST

A lot of folks were pretty surprised back in August when Paul Allen jumped into the patent trolling game, using patents from his failed-over-a-decade-ago research firm, Interval Research, to sue Google, Apple, Facebook, eBay and others over some rather basic concepts. In his first attempt at patent trolling, however, it appears that he forgot to read the patent litigation rulebook. The lawsuit has been dismissed for failure to explain what the various companies actually did that was infringing. Of course, this is not the end of the lawsuit, as he's free to file an amended complaint (which he almost certainly will), but it certainly suggests some rather sloppy lawyering, which could be an indication of what's to come.

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Supreme Court Also Won't Hear Tiffany's Claim Against eBay

Mike Masnick — Mon, 29 Nov 2010 16:05:25 PST

We already noted that the Supreme Court has refused to hear Whitney Harper's innocent infringer case, but in a bit of better news, the Supreme Court has also decided not to hear Tiffany's appeal against eBay, concerning whether or not eBay was guilty of secondary trademark infringement in allowing counterfeit Tiffany goods to be sold on the site. The appeals court pointed out this made no sense, so it's good to hear that the Supreme Court won't upset that ruling -- especially since that ruling has been a key part of the Viacom/YouTube case, in showing that secondary liability shouldn't automatically be applied to third parties, even in the potential absence of legislative safe harbors. One of the concerns with various safe harbors that protect third parties from actions of their users is the implication that without those safe harbors, third parties are automatically liable. Yet, as the Tiffany case showed, some common sense should be applied. Third parties shouldn't be liable for actions of their users unless there's significant involvement by the third party in the infringement.

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Gibson Sues Everyone Over Paper Jamz Paper Guitars, Specifically Goes After eBay

Mike Masnick — Mon, 22 Nov 2010 13:38:49 PST

Eric Goldman points us to the news that the (notoriously litigious) Gibson guitar company is suing a whole bunch of companies for selling the new "Paper Jamz" paper multi-touch guitars. If you haven't seen these things, they're basically a "paper" (really plastic) guitar with a capacitive multi-touch surface that plays music in response to your touch. Here's a video demonstrating the thing in action: It actually seems like a pretty cool toy for anyone who wanted to create a more realistic air guitar... So, what's the problem? Well, it seems like most of the models Paper Jamz is offering look very much like Gibson trademarked guitar models, and the Paper Jamz folks (made by Wowwee) didn't bother to get a license. Wowwee doesn't even bother trying to hide it. In its marketing, it refers directly to the Gibson models each Paper Jamz design is set to look like. It's so blatant, it almost makes you wonder if Wowwee figured they'd get sued to help their marketing.

That said, even if it's totally blatant, I'm wondering if there's any actual "harm" here, despite Gibson's claims. It's not as if using one of these is going to make people say they don't want a real Gibson guitar. If anything, I could see these increasing the demand for the real versions of the various Paper Jamz models. Hell, I could see a market for Gibson to come out with similar designs just to capitalize on the popularity of the Paper Jamz guitars.

The flipside, of course, is that Gibson wants to "license" the trademarked designs, and is actually hoping to get Wowwee to pay up for the designs and then still get the benefit of increased demand for the real guitars. That feels a bit like double dipping, but you can understand where Gibson is coming from on that.

Where it gets a little shadier is going after the various retails selling the Paper Jamz offerings -- as the lawsuit is filed against Walmart, Amazon, Big Lots, K-Mart, Target, Toys R Us, Walgreens, Brookstone, Best Buy, eBay, Toywiz and HSN (Macy's was also threatened, but claims it doesn't sell the toy, so Gibson didn't sue). It gets especially questionable when it comes to eBay, where (obviously) some users have been selling the toy. Gibson claims that eBay is guilty of contributory infringement, because it did not respond to a cease & desist letter it sent and (Gibson claims) even under the recent Tiffany ruling, which absolved eBay of such liability, part of what worked in eBay's favor was its takedown policy. Gibson here is arguing that since eBay didn't take stuff down when it contacted them, that policy was ignored, and the Tiffany ruling no longer applies. That seems like a stretch, though there are some details lacking, such as exactly how Gibson informed eBay of the "infringing" material. A blanket cease & desist might not include enough information. Either way, it seems pretty silly to go after eBay here -- because the company has shown a willingness to fight (and win) over lawsuits like this.

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Nearly Every Company That Hates Google Piles On To Rosetta Stone Case

Mike Masnick — Fri, 5 Nov 2010 05:30:56 PDT

For many, many years, we've covered the long list of cases involving some company suing Google because someone else bought an AdWords ad based on a keyword that the plaintiff had the trademark on. As we've discussed over and over and over again, these lawsuits make little sense for a couple of reasons. First, a trademark does not give you total control over the word, but only in cases where there is a likelihood of confusion (or dilution, though, that's a bit of a separate issue). Having a competitor advertise on your keywords is unlikely to confuse anyone. It's perfectly reasonable to try to put your ads where people are looking for your competitor's products. It's why when you go to the supermarket, they often will hand out coupons to you for competing products to what you've bought. That's not illegal, it's competition. Second, if there actually is any confusion in the ad, the liability would be on the advertiser, not on Google.

Thankfully, in most of these cases, the courts have recognized this and Google has prevailed. One high profile one, decided a few months back, was an attempt by language software firm, Rosetta Stone, to sue Google over ads on the site. Rosetta Stone failed badly, and while there were some quirky aspects to the ruling, it got the "big questions" right.

Rather than recognizing the nature of trademark law, Rosetta Stone is appealing, and the case is generating a lot of attention. Eric Goldman has a rundown of amici briefs supporting Rosetta Stone's position, and it's basically a "who's who" of companies who hate Google and are or were involved in other lawsuits against Google. You have Viacom and Blue's Destiny, who both sued (and lost to) Google on copyright issues. It seems they're hoping that if secondary liability in trademark can be applied to Google on this issue, perhaps they can use it to argue for more secondary liability in copyright law. That's a longshot, and it's a pretty childish reason to file an amicus brief here. There are some other companies that have sued over trademark keyword advertising in the past... And then there's the Association for Competitive Technology (ACT) and the Business Software Association (BSA), both of which have very strong ties to Microsoft. This seems really strange, because a loss for Google here would absolutely harm Microsoft. As Eric Goldman notes:

Could Microsoft be foolish enough to use this lawsuit as an opportunity to tweak its arch-enemy Google, even though an adverse ruling in this case would almost unquestionably be against Bing's best interests?

Even more bizarre is that eBay also has pretty strong ties to ACT, and eBay has been fighting against a long series of ridiculous secondary liability trademark claims from luxury goods makers (many of whom signed on to the exact same brief by ACT. It would appear that this brief actually appears to go against many of the best interests of ACT's largest members. A very strange move by ACT who should know better.

One other oddity: apparently Rosetta Stone's opening brief in the case was heavily redacted for no good reason, which seems problematic on such a high profile case that could impact a variety of technologies and services. Thankfully, Paul Levy saw this and questioned why there were so many redacted parts, and the lawyers have agreed to release an unredacted version of the brief.

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District Court Smacks Down Tiffany (Yet Again) In Fight With eBay Over Counterfeit Items

Mike Masnick — Tue, 14 Sep 2010 16:39:03 PDT

Back in April, we noted the latest in the rather long saga of Tiffany's legal fight against eBay. Tiffany had sued eBay, claiming that the online auction site was legally responsible for policing the site for counterfeit Tiffany items that users were selling. Despite the lack of a clear safe harbor (a la the DMCA or the CDA), the appeals court agreed with the district court that eBay was not liable for the actions of third parties on its site. The one area where the appeals court sent the issue back to the lower court concerned eBay's own advertisements. eBay had apparently run some ads that mentioned the availability of Tiffany products on the site, and Tiffany claimed this made them liable. The court noted that it didn't appear this was false advertising (as there was nothing false in the ads), but that it might confuse or mislead users. It asked the lower court to look into that specific claim.

It didn't take all that long, as the lower court once again sided with eBay and said that eBay did nothing wrong here:

"Tiffany failed to establish that eBay intentionally set out to deceive the public, much less that eBay's conduct was of an egregious nature sufficient to create a presumption that consumers were being deceived,"

You can also read the full opinion thanks to Eric Goldman: The case isn't quite over yet, as Tiffany keeps appealing various aspects of it, but it certainly doesn't look good for Tiffany -- but does appear very good for anyone who believes in the principles of properly applying liability to those who did the actions, rather than the "easy target" third party (even in the absence of official safe harbors).

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