Now Available At Your Local Flea Market: Safe Harbors

from the do-your-own-policing dept

Online marketplaces like eBay have a bit of protection from liability if their platforms are used to sell counterfeit or copyrighted goods. However, in the offline world, flea markets have historically not been granted the same type of protection, as seen in Fonovisa v. Cherry Auctions (1996), where flea markets were found to be liable for selling infringing works.

But now, the same protections afforded to online marketplaces could now be coming to their offline counterparts. Texas judge Lynn Hughes has dismissed the case Sony Discos Inc. v. EJC Family Partnership, where Sony Music sued a flea market operator, Elwin J. Cole, for copyrighted goods being sold at the market. Sony alleged that EJC was guilty of contributory infringement by allowing its sellers to sell copyrighted goods in the market. The judge disagreed, ruling that it was not EJC’s responsibility to police the market for Sony (full ruling here – pdf):

Sony does not argue and cannot show that Cole aided or enhanced infringing sales specifically, in a manner distinct from Cole’s facilitation of all sales at the flea market.

…Cole is not akin to the driver of a get-away car; he is closer to the service station manager who sells the bank-robber gasoline.

So, perhaps driven by the safe harbors enjoyed by their online counterparts, offline flea markets are no longer to be held responsible for infringing uses of their marketplaces. If infringement happens, then it’s reasonable for the owners to go after those specifically responsible — it’s inefficient and unfair to expect a marketplace to do the police work, especially when there are tons of non-infringing sales happening all of the time.

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Comments on “Now Available At Your Local Flea Market: Safe Harbors”

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Colg says:

Re: Re: *A-hem*

“Think of the strangest true thing you’ve ever heard, now add a monkey in a Hitler disguise.”

I don’t think one more monkey in a Hitler suit is going to make that much of a difference and theirs no room for him in the blimp anyway, what with the zebra chain gang in the cabin and Hojatoleslam Kazem Sedighi behind the wheel spouting nonsense.

Josh in CharlotteNC (profile) says:

Re: Re:

“physical flea markets are large and hard to check. online flea markets are electronic and can rapidly be checked.”

Incorrect. There are at least two major difficulties.

One is the same problem of content filters. Start filtering out everything with “porn” and very quickly “pron” is used instead – then filter “pron” as well and “pr0n” comes along. Oh, and you just blocked cooking sites who insist you wear an a-pron by accident. Slaying the hydra quickly becomes insurmountable.

Two is also one of the key issues with Youtube/Viacom lawsuit. How was Youtube to tell the difference between legit Viacom uploads and non-legit uploads? Even Viacom itself couldn’t tell.

PaulT (profile) says:

Re: Re:

Easier to check against a list of known filenames/fingerprints? Yes, assuming said list is accurate and foolproof to begin with (not normally the case).

Easier to track down every infringing item? Absolutely not. In fact, it may be even more difficult to do that for digital items that can be obfuscated in a huge number of ways.

Anonymous Coward says:

Re: Re: Re: Re:

In a flea market you can tell when a gun is a gun, and when an obvious bootleg is an obvious bootleg. Any Joe Schmoe walking by a booth could point that out to you.

Online, it’s impossible to tell that file “My Vid is Cool” #123231/5000000 contains infringing content.

Looking for illegal goods in a flea market is like searching for a needle in a haystack – difficult, but doable. Searching for illegal content on the internet is like separating shell fragments from igneous sand on a beach.

Hephaestus (profile) says:

“Cole is not akin to the driver of a get-away car; he is closer to the service station manager who sells the bank-robber gasoline.”

That is an interesting view and its worth noting that. If the same rules were to be applied in the real world as are being applied to online, then building managers would be allowed to break into your apartment on a regular basis and look around for counterfeit items.

This also brings up another weird and interesting though. If intelectual property becomes real property under the law. Could the act of having the ISP scan your personal property be considered trespass? What happens if the ISP deletes the files in question? Would it be destruction of property? What if the monetary value of the property were at the value required for it to be a felony?

Andrew D. Todd (user link) says:

Sony's Real Intention.

Well, let’s be realistic, and state some obvious points. Sony did not think that the flea market operators was going to go around and programmatically inspect every CD and stamp it with a distinctive approval sticker, or whatever. Sony’s obvious intent was to induce the flea market operator to ban the selling of all CD’s, including remaindered or used CD’s– which is of course what happened in 2003, a year or so after the events in question. The flea market operator presumably came to the conclusion that a small class of merchants who attracted lawsuits from big corporate lawyers were not worth the trouble. This inducement of such a blanket ban of course constitutes a violation of the Sherman and Clayton antitrust acts. Of course, the operator could have had much more fun if he had played along, and got a Sony representative to say the magic words for a concealed tape recorder to pick up.

To the extent that they have had the political power, the music and movie industries have attempted to secure bans on a wide range of “secondary transactions,” on the grounds that consumers would obtain legitimate copies, keep them just long enough to make their own private copies for listening, and return the legitimate copies to the market. Sony’s actions have to be viewed in this context.

It’s a pity that the flea market operator didn’t go in for a bit of entrapment.

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