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.
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Filed Under: auctions, copyright, counterfeits, dmca, liability, safe harbors, siia
Companies: ebay, siia

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  1. identicon
    Andrew D. Todd, 27 Jul 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.

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