E-Commerce Legal Questions
from the the-downfall-of-the-new-economy? dept
An interesting column that ties together a recent lawsuit against eBay for having fraudulent material for sale and the Metallica/Napster situation. Are these companies that are only acting as a conduit at fault? If so, what does that mean for the economy and all these dot coms? It’s only a little scary that we’re leaving this up to the courts to decide. However, no matter what they decide, technology has a way of getting around ridiculous barriers set up by folks who don’t know what they’re talking about.
Comments on “E-Commerce Legal Questions”
A Conduit for What?
eBay claims they’re just a conduit, not an auctioneer. What’s eBay a conduit for? Auctions and only auctions. That makes them an auctioneer in my book and should make them subject to the same regulations as other auctioneers.
What’s Napster a conduit for? Sharing music files. Notice I didn’t say “illegally sharing music files.” That will be for the courts to decide, but if they do decide that “illegally” is an accurate description (and I’m not suggesting that they should), then Napster should be liable, too.
What’s an ISP a conduit for? Anything and everything that can be communicated via IP. Unless there’s something intrinsically illegal (or even regulatable) about IP packets then an ISP shouldn’t have to bear any responsibility for the information contained in those packets.
Re: A Conduit for What?
Definitely a good point. Both eBay and Napster are different than an ISP. However, I’m not sure the rest of your argument applies. eBay isn’t a conduit for auctions in the same sense as an auction house is. An auction house actually runs the auctions and inspects the materials. eBay is more like the company that rents out the auction room… So, I don’t think they should have the same rules apply to them. And, Napster, again, is just creating a tool for sharing files. What people do with it, is their problem. Do people illegally copy movies onto videotape? Do we sue the videotape makers? Or the VCR manufacturers? They just created a tool… the real violators are those who use it for illegal purposes.
Re: Re: A Conduit for What?
eBay may not inspect the merchandise, but they do run the auction: they regulate the seller’s presentation, the duration of the auction, determine who may bid and control all of the mechanics of bidding, then they take a commission based on the selling price. To use your analogy, if I rent out a room and stipulate that it can only be used for holding auctions under terms that I dictate and that I’ll take a cut of the final price, that makes me a party to the auction just as much as the guy in the front of the room who talks really fast.
I’m not as familiar with Napster, so I may be wrong here, but doesn’t it make your MP3 download directory available to any other Napster user? In that sense they’ve decided to dictate the terms for sharing files and should bear some responsibility for that. FTP is a file sharing tool, too, but running an ftp client doesn’t automatically publish my home directory contents to the world.
It took a court battle to decide it, but eventually it was recognized that VCR’s had enough legitimate uses to offset their potential misuse. Does Napster really have any legitimate use? Think about that for a second — if you have to jump through hoops to use Napster legally and/or there are other tools that do the legal things easier and better, then those uses don’t count. It doesn’t sound like I could use it to facilitate any personal fair-use copying of copyrighted material (such as sharing my CD’s between home and work) because it would expose those tracks to illegal copying, and there seem to be better ways to search for and download freely-distributable music.