Software Industry Assocation About To Learn What Safe Harbors Mean

from the if-you-want-to-waste-your-money,-go-right-ahead... dept

It appears that the Software and Information Industry Association (SIIA) is about to learn what DMCA safe harbors mean. The group is apparently upset about the fact that some people sell counterfeit software on eBay. That's not surprising. But, the SIIA is planning to sue eBay for this activity, rather than going after the counterfeiters themselves. Of course, if anyone from the SIIA had been paying attention, they would know that courts in the US have repeatedly found that eBay and sites like it are protected by various safe harbor provisions. This is for a very good reason: it's not eBay counterfeiting anything. eBay is merely the platform. If the SIIA wants to go after the actual counterfeiters, that's their issue. But going after eBay for providing the platform is going to fail miserably. You would think that a trade group that claims they cover the "Information Industry" would know that already.

Reader Comments (rss)

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  1. identicon
    Anonymous Coward, Jul 25th, 2008 @ 5:55pm

    Tiffany's case was based on trademark law, where this one would be associated with copyright law...and particularly contributory infringement. While "safe harbor" may apply, it is not at all clear eBay is off the hook.

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

  2. identicon
    Woadan, Jul 25th, 2008 @ 6:10pm

    Over at CNet earlier today (article at

    *****Begin quote*****
    Kuperfschmid thinks that any SIIA lawsuit would be taking a different approach, perhaps relying more on copyright law than trademark law, which had been Tiffany's strategy. (Tiffany's lawyers said last week that their client was likely to appeal.)

    "The standards are somewhat different under copyright than trademark law," Kuperfschmid said. "If you look in the statute under the DMCA (Digital Millennium Copyright Act), it does have a standard for determining when eBay may or may not be liable," Kuperfschmid said.

    And if courts eventually rule that the DMCA doesn't force eBay to be the kind of Net-cop that the SIIA might like, there's always one remaining option: rewrite the law.
    *****End quote*****

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

  3. icon
    Mike (profile), Jul 25th, 2008 @ 6:51pm


    Tiffany's case was based on trademark law, where this one would be associated with copyright law...and particularly contributory infringement. While "safe harbor" may apply, it is not at all clear eBay is off the hook.

    Yes, the DMCA safe harbors are somewhat different than the CDA's safe harbors, but it's VERY unlikely that you could come up with a way in which eBay is actually guilty of contributory infringement here. At least not without being incredibly intellectually dishonest.

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

  4. identicon
    evgen, Jul 25th, 2008 @ 9:46pm

    Fonovisa v. Cherry Auction will be important in this one...

    If you are wondering how the SIIA is going to approach this case, do a bit of research on the Fonovisa v. Cherry Auction case. There are limits to the DMCA safe harbor provisions, and given the role eBay plays in policing its market it is going to find itself facing a higher standard than some random ISP that makes no effort to examine or regulate its users.

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

  5. identicon
    vader, Jul 26th, 2008 @ 10:22pm

    EBAY is flipping out over legit software

    I've been hit with take down notices for OEM software that is normally protect by the first sale doctrine. Now they are taking down and threatening on all software.

    The idea is to drive the marginal folks off with the pirates apparently.

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

  6. identicon
    Andrew D. Todd, Jul 27th, 2008 @ 1:58am

    An Open Source Solution

    If E-Bay wants to give the SIIA a really bad day in return, the thing to do would be to set up an open source project along lines analogous to the Google Summer of Code. E-Bay's project would be targeted as software niches presently dominated by expensive proprietary OEM software, eg. Photoshop, AutoCad, Mathematica, etc. Bootleg software is a byproduct of lack of effective competition, and the SIIA can hardly object to a program designed to break up unlawful monopolies. There would have to be explicit guidelines for identifying monopolistic niche software, so that Adobe and Autodesk could not claim they were being unfairly picked on. The guidelines might specify a minimum price for a noncustomized program, and a minimum number of users, etc.

    Google Summer of Code has certain biases built into it-- it tends to favor a reasonably established open source project which can provide mentors, and which wants someone to add a real specific feature, such as a file conversion utility. In effect, Summer of Code sets up a summer job as a kind of sponsored bachelor's thesis. This seems to have its limits for improving certain kinds of programs, such as GIMP, where exemplary users, such as people with MFA's, think in very different ways than software developers do, and have difficulty in conveying their requirements in terms which a software developer can understand. Perhaps E-Bay could fund things like usability studies. For example, they might pay lots and lots of art students to spend two weeks participating in a study. That would need to be set up through an art school department, so as to avoid selecting atypical artists who were unusually comfortable with programming or advanced computer usage. The output of the project would be published reports explaining in engineer's language what you need to do to make a Photoshop killer.

    Something similar could be done for AutoCad and the architect market. In other cases, where software patents are an issue (patented user file formats or user interfaces), E-Bay could sponsor patent challenges. The idea, in one form or another, would be to tap into whole groups of people who would not be eligible for Google Summer of Code.

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

  7. identicon
    PRMan, Jul 27th, 2008 @ 7:36am

    I don't know...

    They just have to sue them in France or Italy.

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

  8. identicon
    MLS, Jul 27th, 2008 @ 9:12am

    Re: Re:

    One does not need to be intellectually dishonest in order to proffer allegations of wrongdoing by eBay. Recall, though, that allegations are not facts, and it is through the discovery process that relevant evidence is ascertained.

    The talk about "considering a lawsuit" is quite likely meraly posturing to move the ongoing discussion along to a mutually satisfactory conclusion.

    Apparently the discussions are having some effect. At this point in time it appears that the auctions at eBay have been reduced to bring such auctions more in line with current law. This is beneficial to eBay's position and is one of the reasons I happen to believe that a lawsuit at this juncture is merely talk and not a call to arms by the SIIA.

    Just an observation you may wish to consider, the title of the article is in my opinion pejorative and can be viewed as exhibiting a bias against rights holders.

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

  9. identicon
    Rose M. Welch, Jul 27th, 2008 @ 10:11am


    Tiffany won in France.

    eBay won similiar cases in America.

    If SIIA plans to sue in America, they are stupid and Mike is correct.

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

  10. identicon
    ehrichweiss, Jul 27th, 2008 @ 12:38pm

    Re: Fonovisa v. Cherry Auction will be important in this one...

    This is a very good point since they have handed over the keys to various asshat corporate entities like the Cult of Scientology and Dish Network so they can cancel auctions that merely mention their "intellectual property" in auctions. The moment they did that they essentially wrote off the ability to claim any safe harbor provisions protect them and have less of a common carrier status than "pawn shop" status, of which is HIGHLY regulated in my state(even 2nd hand shops have to abide by their rules).

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

  11. identicon
    ehrichweiss, Jul 27th, 2008 @ 12:41pm

    Re: EBAY is flipping out over legit software

    ...and hence the quicker the evil Empire will fall without support from the little guys.

    I've started buying from Amazon since I can get pretty much anything I want without dealing with scammy listings by sellers, and usually at FAR better prices. Ebay's time is up.

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

  12. identicon
    Anonymous Coward, Jul 27th, 2008 @ 4:11pm

    Re: Re: Re:

    should be

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

  13. identicon
    John, Jul 29th, 2008 @ 1:25pm

    A waste of more than money

    from the if-you-want-to-waste-your-money,-go-right-ahead... dept
    I think this subtitle is a little misleading. Not only will the SIIA be wasting its own money, but it'll be wasting eBay's money and time and it'll be wasting the court's time.
    Maybe this case is different than all the other cases of Company X vs. eBay, but like Mike says, shouldn't the company go after the individuals? That's just silly- why sue individuals when they don't have deep pockets like eBay.

    Plus, I wonder if the SIIA is truly in this case to win, or if they'll be happy with an out-of-court settlement, which of course, they'll get millions of dollars and announce the fact that they "won".

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

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