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The Companies Who Support Censoring The Internet

Mike Masnick — Tue, 18 Jan 2011 13:01:00 PST

A group of companies sent a letter to to Attorney General Eric Holder and ICE boss John Morton today (with cc's to VP Joe Biden, Homeland Security boss Janet Napolitano, IP Czar Victoria Espinel, Rep. Lamar Smith, Rep. John Conyers, Senator Patrick Leahy and Senator Charles Grassley), supporting the continued seizure of domain names they don't like, as well as the new COICA censorship bill, despite the serious Constitutional questions raised about how such seizures violate due process and free speech principles. While many reporting on this letter refused to actually post a copy of the full letter, kudos to Greg Sandoval over at News.com for doing so (full text also included after the jump on this post).

The companies try to present a united front that censoring the internet is a good thing. It includes the usual suspects of Viacom and NBC Universal on the content side and Louis Vuitton and Tiffany on the counterfeiting side, but there are a few other interesting names: such as Monster Cable (never met an IP law it didn't want to abuse, apparently), the NBA, MLB and NFL (sports leagues unite in censorship!) as well as Voltage Pictures, famous for suing thousands of fans for downloading Hurt Locker. Activison, which has become increasingly aggressive on IP issues lately is on the list as well, of course. Anyway, here's the full list of companies that support censoring the internet, because they're too lazy to compete in the marketplace or innovate when that market changes:

Nike - Beaverton, OR
Achushnet - Fairhaven, MA
Curb Music Publishing - Nashville, TN
NBC Universal - New York, NY
Viacom - New York, NY
Callaway - Carlsbad, CA
Cleveland Golf - Huntington Beach, CA
Rosetta Stone - Arlington, VA
Activision - Santa Monica, CA
Adidas Group - Portland, OR
Xerox - Norwalk, CT
Hastings Entertainment, Inc. - Amarillo, TX
Fortune Brands - Deerfield, IL
Coty Inc. - New York, NY
EDGE Entertainment Distribution - Streetsboro, OH
Oakley, Inc. - Foothill Ranch, CA
PING - Phoenix, AZ
Louis Vuitton - New York, NY
D'Addario and Company - Farmingdale, NY
Monster Cable Products, Inc. - Brisbane, CA
Tiffany and Co. - New York, NY
Farouk Systems, Inc. - Houston, TX
Beam Global - Deerfield, IL
Chanel USA - New York, NY
True Religion Apparel, Inc. - Vernon, CA
Concord Music Group - Beverly Hills, CA
Village Roadshow Pictures - Beverly Hills, CA
National Basketball Association - New York, NY
National Football League - New York, NY
The Collegiate Licensing Company/IMG College - Atlanta, GA
Anderson Merchandisers - Amarillo, TX
Trans World Entertainment Corporation - Albany, NY
Timberland - Stratham, NH
Major League Baseball - New York, NY
Lightening Entertainment/Mainline Releasing - Santa Monica, CA
Sierra Pictures - Beverly Hills, CA
Voltage Pictures LLC - Los Angeles, CA
Worldwide Film Entertainment LLC - Westchester, CA
Nu Image, Inc. - Los Angeles, CA
Burberry Limited - New York, NY
Big Machine Records - Nashville, TN
The Little Film Company - Studio City, CA
Columbia Sportswear Company - Portland, OR

These companies are clearly trying to protect their own business interests, but it seems reasonable to let them know that you don't appreciate them seeking to censor the internet. If you haven't been following this story, and want to understand the details, we've discussed why COICA is all about censoring websites without due process and in violation of the First Amendment. We've also discussed how the ongoing (pre-COICA) domain name seizures were riddled with serious errors that appear to violate the law as well, including seizing the domains of blogs regularly used and recognized within the music industry based on evidence involving songs sent by the record labels themselves.

And, of course, none of this is to say that violating copyright or trademark laws should be allowed. But we have a system to deal with such things: you file a lawsuit, you have an adversarial hearing in a courtroom (i.e., due process) and you let both sides present their case. COICA and these domain seizures look to avoid all of that. And that's a big, big problem. That these companies would support such censorship and leapfrogging over due process suggests that they're companies not worth doing business with.

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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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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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Tiffany Learns, Yet Again, That eBay Is Not Responsible For Users Selling Counterfeit Items

Mike Masnick — Thu, 1 Apr 2010 15:46:00 PDT

Back in 2004, famed jeweler Tiffany sued eBay, because some users on eBay were selling counterfeit Tiffany items. It's the same old story of secondary liability -- with eBay pointing out (quite accurately) that if users are selling counterfeit goods, that's between Tiffany and those users. eBay is just the platform. But Tiffany didn't care. Its CEO even admitted that it was suing eBay because that was easier than going after those actually responsible. It's an incredible sense of entitlement by Tiffany: because it doesn't want to actually police counterfeit sellers, eBay should just step up and do so automatically?

The district court smacked down Tiffany on every count, explaining pretty clearly that it makes no sense at all for eBay to be responsible for the actions of users. And, of course, Tiffany appealed.

The appeals court has sided with eBay yet again, telling Tiffany, once again, that eBay is not liable for the actions of its users (full decision -- pdf). The court notes that eBay seems to have bent over backwards -- beyond what the law requires -- to help Tiffany stop the sale of counterfeit items and to warn users to make sure they're buying legitimate items. It notes that while eBay may have had "general knowledge" of counterfeit goods on the site, whenever it had specific knowledge, it was quick to take down the offending content, and thus there was no secondary or contributory trademark infringement.

Separately, the court agreed with the lower court that eBay did not violate Tiffany's trademarks by mentioning Tiffany in its own ads -- saying that it was entirely accurate to note that you could buy Tiffany products on eBay. That was factual, and thus, no trademark infringement. It made quick work of Tiffany's "dilution" claim as well, pointing out that eBay has nothing to do with that:

Tiffany argues that counterfeiting dilutes the value of its product. Perhaps. But insofar as eBay did not itself sell the goods at issue, it did not itself engage in dilution.

The one area where the appeals court differed from the district court is outside of the trademark realm, but on the question of whether or not eBay's ads that mention Tiffany could, potentially, be seen as "false advertising." The court noted that there was nothing that was directly false in the ads (it was, again, accurate that you could buy Tiffany goods via eBay), but that it could be possible that users were mislead or confused. So it sent the case back to the lower court to retry that particular issue.

In the meantime, though, Tiffany wants to appeal the rest of the ruling to the Supreme Court, which may now have a chance to establish, clearly, that you can't pin secondary liability on a service provider. Tiffany's response to the ruling actually seems a hell of a lot more "misleading" than any of eBay's ads:

"EBay knew that counterfeit merchandise was being sold on its site -- and EBay took no effective steps to stop it," Tiffany Chief Executive Officer Michael J. Kowalski said in a statement. "EBay deliberately misled consumers for profit, and unfortunately the court has justified its actions."

But that's simply, factually, incorrect. As the court clearly noted, eBay bends over backwards to try to stop counterfeit merchandise from being sold on the site. Hopefully Tiffany execs come to their senses, but it seems likely they'll still appeal, and still fail to recognize the difference between blaming the party doing the actual infringement and the service provider they use.

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Tiffany Still Confused About How Liability Works; Appeals eBay Decision

Mike Masnick — Mon, 11 Aug 2008 21:21:00 PDT

Last month a US court correctly pointed out that eBay was not liable for counterfeit products showing up on the auction site. That doesn't mean that it's legal to sell counterfeit products, just that eBay isn't liable for the counterfeits showing up there. Instead, it should be the person who actually lists the item that's liable. That makes perfect common sense. Except to Tiffany, apparently.

The company is now appealing the ruling, making some bizarre arguments in its own defense:

"If one were a flea market operator and you become aware that counterfeiting is going on with the individual sellers at the flea market, you have a duty to investigate it. Why is eBay any different from that analogy?"

Well, two things, actually. First, it's the individual seller in that situation that's liable, not the flea market operator, and much more importantly, eBay is quite different than a typical flea market in that it doesn't pre-vet any of the sellers. A traditional flea market involves the flea market operator finding sellers. eBay is just a platform where anyone can sell. That is, eBay has simply no knowledge of what anyone is selling on the site -- nor should it be required to. The law is pretty clear on this, so it's not at all clear what Tiffany thinks it's going to accomplish here other than to waste a lot of money on lawyers who seem to be giving the company really bad advice.

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US Courts Recognize That eBay Isn't Responsible For Auctions By Users

Mike Masnick — Mon, 14 Jul 2008 12:56:57 PDT

Unlike last month's awful ruling in a French court, costing eBay millions, a US court has correctly recognized that eBay should not be found responsible for auctions of counterfeit goods. This case involved Tiffany Co., who wanted eBay to be held liable for others selling fake Tiffany goods on eBay auctions. The court sided with eBay on every single charge, and smacked down Tiffany over and over again in the ruling. It noted that eBay is not responsible for the actions of its users, and Tiffany is wrong to suggest that eBay has the responsibility to monitor the auction site for infringing auctions. eBay does take down such counterfeit auctions when made aware of them, and that is all that the company is required to do. The court specifically points out that the Supreme Court had already rejected the idea of a "reasonable anticipation" standard that would have made eBay liable, even though Tiffany tries to suggest otherwise. The court also notes that eBay didn't infringe on Tiffany trademarks in mentioning Tiffany in advertisements for the site. This is an excellent overall ruling, and nearly the complete opposite of the terrible French ruling.

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Tiffany CEO Admits That It's Suing eBay Because It's Too Hard To Find Real Counterfeiters

Mike Masnick — Mon, 26 Nov 2007 22:15:32 PST

Three and a half years ago, famed jeweler Tiffany sued eBay because people were selling counterfeit Tiffany goods on the auction site. As we noted at the time, it doesn't make any sense at all to sue eBay, since it's not eBay who's doing anything wrong. Tiffany's CEO has now basically admitted that, but doesn't seem to mind. At a hearing in the lawsuit, CEO Michael Kowalski admitted that the firm was suing eBay because it was hard to find the actual sellers. That may make sense in the mind of a Tiffany exec, but the way laws work is that you don't get to sue the person or company who's easy to find just because those actually responsible are hard to find. When a robber holds up a Tiffany store, does Kowalski sue the maker of the getaway car, because the robber can't be found? The company does admit that it sues the individuals when they can be found, but the CEO refers to them as "phantasms" and claimed it made more sense to just focus on eBay, saying that the real fault is "the distribution network, not the seller." Next thing you know, Kowalski will be suing the internet itself. After all, it's "the network, not the seller."

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