What's The Liability For A Service Provider Who Ignores Takedown Notices?

from the we-may-be-about-to-find-out dept

We've gone on at length over the years concerning safe harbors for online service providers, noting that service providers shouldn't (and usually don't, under the law) have liability for illegal actions performed by users of the service. However, many of the safe harbors that provide that protection make it clear that should the service providers be informed of illegal activities, the service providers need to take action to avoid becoming liable. However, if the service providers don't take action, what is their liability? We may soon find out, thanks to a new lawsuit involving eBay and the maker of of dollhouse furniture, Hansson. Hansson is upset that someone else is selling dollhouse furniture on eBay using Hansson's trademark. While, at first, this might sound like other such lawsuits against eBay for counterfeit goods, this case is different in a few important ways. First, Hansson actually is suing the company who is selling the counterfeit doll furniture. Second, while it is suing eBay, that's only because Hansson claims that the company sent eBay eight takedown notices and a cease-and-desist letter -- all of which were ignored. So, the question now becomes what kind of liability eBay faces if it's found that the company ignored the various notifications about infringing goods on the site. Eric Goldman, who wrote the story at the link above wonders why eBay would ignore all those notifications, but also questions whether or not it's wise on Hansson's part to drag eBay into the lawsuit just to get its attention. As he says, Hansson may get more of eBay's attention than it really wanted.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    TechNoFear (profile), Dec 13th, 2007 @ 6:47pm

    Ebay does not care....

    I registered an account with Ebay.

    Something went wrong in the setup and wrong account (someone else's) was linked to my email.

    I gave up after 4 attempts trying to inform Ebay.

    I was first told by Ebay CSO's to check with my ISP that they had not closed my email (what that had to do with a mislinked account...).
    The CSO did not seem to understand that my ISP could not close my hotmail account. It was also the email address the Ebay CSO was replying to, so it must be working.

    Then things went downhill.....

     

    reply to this | link to this | view in thread ]

  2.  
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    Anonymous Coward, Dec 13th, 2007 @ 7:14pm

    Sad but true.

    As he says, Hansson may get more of eBay's attention than it really wanted.

    It is a sad truth that trying to get justice in a US court against a large corporation often backfires when the court system seems not to be trying to determine who is right or wrong but who has the most money. If Hansson isn't in Ebay's league then the court may just let Ebay mop the floor with them.

     

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  3.  
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    Evil Mike, Dec 13th, 2007 @ 8:39pm

    Ever since the founder of eBay sold the company, the customer service (hell, everything to do with giving a shit about the site's users) has largely gone all to hell; and all in the name of Profit (the platinum god...)

     

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  4.  
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    James W., Dec 13th, 2007 @ 9:10pm

    At first, they were free

    According to Appendix B of Title 17 US Code of Law (or the DMCA of 1998 as it's commonly known), eBay was -- at first -- pretty much scott free as they were not knowingly letting the auction take place with any intent of letting fallacious transitory information pass through their service. I believe Section 512(a) of Title 17 spells out the limited liability a service provider has (it's either 512(a) or 512(i), I forget which).

    However, now that they've "ignored" 8 prior takdedowns, are they now an accessory to trademark infringement? Truthfully, more than likely. Since Hansson is no doubt a legally registered trademark and their products are copyrighted, their 8 dismissals and failure to act C&D now make eBay an accessory. Of course, Hansson's name may be trademarked but their items may not be copyrighted so the takedowns could at that point be null and void since a legal infringment must only occur for media that has been previously copyrighted by the Copyright Office (at least for finite goods).

    At worst, eBay's lawyers will end up burying Hansson Inc. over some legalese technicality but at best, they'll be an accessory to trademark fraud/copyright infringment along with severe due professional negligence.

    Although, IANAL (I just do this same thing everyday at work).

     

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  5.  
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    Woadan, Dec 13th, 2007 @ 9:22pm

    Well, it may not really be eBay's fault, but I think if you asked them to fix it and they didn't they should answer for why. In a court case? Maybe not so much.

    eBay is pretty difficult to deal with on auction issues unless you already bought the item from the seller. For instance, I was looking for a new cell phone and thought I'd check on the Verizon Voayger. ABout half of the auctions are for "dummy" or "Display" models, or for "business email Voyager domains". Patently not for a cell phone. But when I tried to send a not to eBay, they made it next to impossible to get a message to them.

    Am I being unreasonable to expect that auctions that purport to be for an actual cell phone be for an actual cell phone? I guess I am...

    Woadan

     

    reply to this | link to this | view in thread ]

  6.  
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    CB, Dec 13th, 2007 @ 11:30pm

    Ebay is a cesspool now... hard to separate the good from the bad people selling and buying... Another company will come along and do it right hopefully...?

     

    reply to this | link to this | view in thread ]

  7.  
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    AJ Barnes, Dec 14th, 2007 @ 5:18am

    So, without any proof other than a letter (well, 8 actually) from a company, eBay is supposed to shut down someone's business. Why does eBay become the enforcer of trademark infringement? Why does eBay become the policeman to enforce someone's alleged claim that someone else is doing wrong? Did Hansson provide legal proof that the seller was doing something illegal? What if the seller wasn't really doing anything wrong and eBay shuts them down??

    I suggest going down this path is dangerous. Why can't I notify eBay that my competitor's products are counterfeit and have them shut down with just a simple letter? Slippery slope... watch out!

     

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  8.  
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    Anonymous Coward, Dec 14th, 2007 @ 5:49am

    They lose safe harbor. How difficult is that?

     

    reply to this | link to this | view in thread ]

  9.  
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    Killer_Tofu (profile), Dec 14th, 2007 @ 6:10am

    Wow

    Good to see that some company is actually suing for the right reasons, rather than just whoever is the biggest target in the chain of events.
    Yay for not adding pointless lawsuits against those who had no responsibility.
    In this case, it actually makes sense that they are suing eBay, unlike pretty much every other case filed.

     

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  10.  
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    Anonymous Coward, Dec 14th, 2007 @ 8:18am

    Flea Markets

    Does someone sue a flea market if a vendor is selling counterfeit versions of their product there?

     

    reply to this | link to this | view in thread ]

  11.  
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    Woadan, Dec 14th, 2007 @ 10:38am

    eBay is a flea market? Since when?

    eBay is a facilitator, and they should not be facilitating wrongful and/or unlawful activity. If proven that they did so, they should then be liable for damages.

    Woadan

     

    reply to this | link to this | view in thread ]

  12.  
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    Shine (profile), Oct 25th, 2011 @ 2:41am

    update?

    What happened to this case? Any updates?

     

    reply to this | link to this | view in thread ]

  13.  
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    Andrew, Dec 3rd, 2011 @ 6:22am

    Re:

    This poor customer service will get back at them eventually.

     

    reply to this | link to this | view in thread ]

  14.  
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    Katherine, Jan 25th, 2012 @ 8:31pm

    Re:

    That's why when dealing online, always be cautious and be wise.

     

    reply to this | link to this | view in thread ]

  15.  
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    Andrea, Feb 27th, 2012 @ 4:56am

    I am using smart broadband, as an ISP customer i must say that their team is very approable.

     

    reply to this | link to this | view in thread ]


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