To support Singapore’s vision to become a Global Intellectual Property (IP) hub in Asia, the Intellectual Property Office of Singapore (IPOS) recently announced its investment of 65 million Singapore dollars to ramp up IP manpower and capabilities in Singapore in 2013. Additionally, you are unable to report stolen property through the VeRO software. 1"), Plaintiff sued eBay and two eBay sellers, asserting a claim for copyright infringement. You can report sellers on eBay and remove fake items one by one, but its a slow, inefficient process, and your counterfeit issue may be far deeper than you even realise. Viewing the term "infringing activity" in this context, the undisputed facts demonstrate that eBay does not have the right and ability to control such activity. ( See id.). Ed Oswald is a freelance writer whose work appears on several technology sites as well as on Demand Studios. Title II of the DMCA, set forth in 17 U.S.C. As eBay explained, some of the benefits of the VeRO program include, among other things: (1) access to a customer support group dedicated to servicing the VeRO participants; (2) dedicated priority email queues for reporting alleged infringing activities; and (3) ability to use a special feature called "Personal Shopper," which allows users to conduct automatic searches for potentially infringing item. If, after reviewing the terms on their VeRO Participant Profile, you believe your listing was removed in error, you may be able to resolve the predicament by doing the following: Even if youve made changes to your listing after the report was made, do not re-list if you do not have approval from the VeRO participant. ( Id., Ex. Congress could not have intended to shift the target of infringement actions from the Internet service providers to their employees when it enacted the safe harbor provisions. . The main goal here is to prove that you have not infringed on the VeRO participants rights or to correct the situation if you have. Napster operates an Internet service that facilitates the transmission and retention of digital audio files by its users. at 11 (emphasis added).) 512(c)(3)(B)(i) (ii) (emphasis added). The member who has created the listing is informed of the reason for their listing being removed, and if there is a dispute regarding the removal or lack of removal of a listing eBay encourages its members to resolve it directly with the intellectual property rights owner. Repeated violations of these policies could result in termination of your eBay account. . 17 U.S.C. Section 512(c)(3) sets forth the required elements for proper notification by copyright holders. The patent system compliments copyright protection by providing patent protection for functional parts of the software. No. at 7.) 1. Second, eBay's voluntary practice of engaging in limited monitoring of its website for "apparent" infringements under the VeRO program cannot, in and of itself, lead the Court to conclude that eBay has the right and ability to control infringing activity within the meaning of the DMCA. Because Plaintiff did not provide this information to eBay in writing, the Court need not consider the deficient notice. Ensure that all information in your listing and photos represent the product in an accurate manner. Because Plaintiff failed to raise this argument in his papers and failed to submit evidence in support of this argument, the Court declines to consider it. 1114(2) even if Plaintiff were to establish infringement. "Title II preserves strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital networked environment." A non-moving party's allegation that factual disputes persist between the parties will not automatically defeat an otherwise properly supported motion for summary judgment. If a seller is using a businesss content without permission then the owner of the image can request to have it removed from the listing. Third, the service provider must show that it responded expeditiously to remove the material that is the subject of infringing activity upon receiving notification of the claimed infringement in the manner described in Section 512(c)(3). (Opp. First, the service provider must demonstrate that it does not have actual knowledge that an activity using the material stored on its website is infringing or an awareness of "facts or circumstances from which infringing activity is apparent." To hold that the safe harbor provision of the DMCA protects the company but not its employees for the same alleged bad acts would produce an absurd result. This is akin to what users of CBS radios do when they give themselves a handle that identifies themselves over the radio waves. All rights reserved. However, there are certain legal advantages to doing so. Before taking specific actions in relation to IP protection or enforcement all customers are advised to seek independent legal advice. at 8.) Plaintiff contends that during a January 2001 telephone conversation (shortly after he commenced suit), he told Richter that all copies of "Manson" in DVD format infringe on his copyright because he has never authorized the release of this movie on DVD. An email is sent to sellers when one of their items is denied, which includes the rights owners contact information. The owner of intellectual property rights can file a Notice of Claimed Infringement (NOCI) via eBays VeRO program if an item infringes on their rights. Sellers can ask eBay to retract their complaint if the rights owner made a mistake. The complete failure to include these key elements in his written communications to eBay, even after eBay specifically asked for these items, renders Plaintiff's notification of claimed infringement deficient under Section 512(c)(3). Ecommerce sales have been a lifeline for businesses that are quick enough to take advantage of the shift in consumer behavior, but the surge of ecommerce sales has worsened existing brand protection issues. As the copyright owner, it is up to you to decide whether or not to keep each of your products and distribute them separately or collectively. A copyright is a set of rights that are immediately yours when you create original work. Copyrighted images and text this includes using other listings images and text without authorization. ( See Richter Decl., Ex. a policy that provides for the termination in appropriate circumstances of [users] of the service provider's system or network who are repeat infringers." ( Compare id. Plaintiff filed his opposition on August 6, 2001 and the eBay Defendants filed their reply on August 13, 2001. Dan Kitwood/Getty Images News/Getty Images. Every day, eBay users place on average over one million new listings on eBay's website. In Hendrickson v. eBay, Inc. the district court hypothesized that "if a movie studio advised eBay that all, Accordingly, the innocent infringer defense is inapplicable. Having registered with eBays VeRO program, these property right owners monitor listings on eBay, or they use third-party web monitoring agents that help warn them of infringement threats. Also, sellers cant re-upload listings that have been deleted without first repairing them. Dont feel bad, youre not alone. Having copyright gives you control over the distribution of your work. He graduated with a B.A., Hons in Criminology and Sociology from The University of York in 2014. If you have questions as to whether or not an item can be sold on eBay, contact the rights-owner or manufacturer first. In his response to eBay's First Set of Requests for Admissions, Plaintiff explained why he refused to join the VeRO program: On January 17, 2001, Plaintiff filed the first of three lawsuits against eBay. As discussed above, eBay found and removed this listing after Plaintiff sent an email complaining about this seller; this seller only had one active advertisement at the time. See 17 U.S.C. See 17 U.S.C. However, the Court granted eBay and Richter's motion for summary adjudication of the application of the Lanham Act's "innocent infringer" provision. 3"), Plaintiff added several other defendants, including eBay's Senior Intellectual Property Counsel, Michael Richter ("Richter"). J.) Copyright 2005-2022 SaleHoo Group Limited. The VeRO program was launched in 1998 and enables IP rights owners to report potentially counterfeit or otherwise infringing listings to eBay. They should not, however, claim to be an authorized dealer or reseller unless they are. (Reply at 3.) must set forth specific facts showing that there is a genuine issue for trial."). Serv., Inc. v. Pacific Elec. ( See Opp. . . Ryan is a marketing content manager, writing about topics surrounding intellectual property law, global affairs, new technology, and cultural developments. 512, "protects qualifying Internet service providers from liability for all monetary relief for direct, vicarious and contributory infringement." ( See id. To qualify for one of the safe harbor provisions, the service provider's activities at issue must involve functions described in one of four separate categories set forth in subsections (a) through (d) of Section 512. Warranty misrepresentation of a manufacturers warranty that does not cover resold products. at 7.) Accordingly, the Court holds that eBay has satisfied the first prong of the safe harbor test under Section 512(c). You will likely have your listing taken down again, and repeated removal can only lead your account to suspension. CV 01-0495 RJK (RNBx), CV 01-3412 RJK. Terms of Use | Privacy and Cookie Notice, European Parliament Defends Retailers Right to Sell on Online Platforms, eBay contributes towards Singapores IP Competency Framework, You Bought It, You Own It: eBay Champions for Ownership Rights on Capitol Hill, The Verified Rights Owners Programme (VeRO), U.S. at 24 Ex. 512(c)(1)(A)(i)-(ii). Indeed, such an injunction would effectively require eBay to monitor the millions of new advertisements posted on its website each day and determine, on its own, which of those advertisements infringe Plaintiff's Lanham Act rights. The DMCA specifically requires a service provider to remove or block access to materials posted on its system when it receives notice of claimed infringement. So, what happens if youve found someone selling counterfeit copies of your product on eBay? If you are acting as an agent of a business you will need a certificate of corporation. Plaintiff alleges that eBay participated in and facilitated the unlawful sale and distribution of pirated copies of "Manson" DVDs by providing an online forum, tools and services to the third party sellers. These include infringements of trade mark, copyright, patent and design rights. 17 U.S.C. A fact is material only if it is relevant to a claim or defense and its existence might affect the suit's outcome. See 17 U.S.C. to Motion for Prelim. An important consideration before listing an item on eBay is copyright. Understanding copyright and what it is will help you avoid infringement. ( See id.). There is no dispute over whether eBay is an Internet "service provider" within the meaning of Section 512. eBay clearly meets the DMCA's broad definition of online "service provider." This option may be costly, but as a last resort, if you feel that the removal unjustly damaged your online business, you may want to seek legal advice. If you do not comply with these rules, eBay will remove your listing, and may eventually limit your buying/selling privileges or suspend your account. There is no way to know in advance if a seller has the authority to sell their products because of the massive volume of transactions that take place each day. eBay "enables trade on a local, national and international basis" and "features a variety of . eBay's own website describes itself as "the world's largest online marketplace." On February 12, 2001, Plaintiff filed the second lawsuit. See id. The letter advised eBay that Plaintiff dba Tobann International Pictures is the copyright owner of the documentary "Manson." All Rights Reserved. Plaintiff refers to the first prong of the safe harbor test set forth in Section 512(c)(1)(ii) and (iii) in support of this argument. In addition, Plaintiff alleges a Lanham Act claim and a state claim for tortious interference with prospective economic advantage. California, holding that "no law currently imposes an affirmative duty on companies such as eBay to engage in such monitoring" of their websites, and that "eBay has no affirmative duty to monitor its own website for potential trade dress violation". 2548, 91 L.Ed.2d 265 (1986); see Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. G.) The e-mail does not identify the listings that are claimed to be the subject of infringing activity; it does not even describe the infringing activity. However, the patent application procedure is extremely time- and cost-intensive and should not be performed without the assistance of an experienced attorney or agent. Plaintiff contends that it is not his job to do so once he has notified eBay of the existence of infringing activity by eBay sellers. 2"), Plaintiff sued eBay, David Durham (another third party seller) and Margaret C. Whitman ("Whitman"), eBay's President and CEO. . See 17 U.S.C. July 3, 2001 Order at 15. On July 27, 2001, the eBay Defendants filed the pending motion for summary judgment. See Hendrickson v. eBay, Inc., 165 F. Supp. Nevertheless, the Court notes that the record shows that at all relevant times, eBay advised Plaintiff that the notices of infringement should be submitted to the attention of eBay's "VeRO Program." Id. This case involves a matter of first impression in the federal courts: whether one of the "safe harbor" provisions of the Digital Millennium Copyright Act ("DMCA") affords protection to the operator of the popular Internet auction web service, www.ebay.com, when a copyright owner seeks to hold the operator secondarily liable for copyright infringement by its sellers. After the hearing, the Court took the motion under submission. 512(c)(1)(C). [and] the complaining party is authorized to act on behalf of the owner" of the copyright at issue. (Hendrickson Decl., 11.) 1996). In December 2000, eBay voluntarily began searching its website daily, on a limited basis, for listings that appear on their faces to be infringing "apparent" infringements. As the Court previously noted, "no law currently imposes an affirmative duty on companies such as eBay to engage in such monitoring." The First Prong of the Test: Actual or Constructive Knowledge. 512(c)(3)(A). Examine the profiles of VeRO participants who own intellectual property rights. ( See id. A screenshot or link to the infringing listing, the location of the infringing material on eBay, coupled with a description of the item, including details such as its ID number, price and seller details. EBay prohibits the sale of copied content, and copyright owners reserve the right to request that your item be removed, if they consider it to be a violation of their copyright. 17 U.S.C. 512(i)(1)(A). ", taking judicial notice of defendant's website. See 17 U.S.C. 512(c)(1)(A)(iii). at 40. The letter also stated that pirated copies of "Manson" in digital video disk ("DVII)") format were being offered for sale on eBay. 1997), quoting Anderson, 477 U.S. at 249, 252, 106 S.Ct. Because eBay and Richter are "innocent infringers," Plaintiff's remedy is limited to an injunction against the future publication or transmission of the infringing advertisements on eBay's website. It is undisputed that Plaintiff refused to provide specific item numbers of problematic listings before filing suit. (Hendrickson Decl., 11.) Robert Hendrickson, Woodland Hills, CA, pro se. On April 13, 2001, Plaintiff filed his third lawsuit against eBay. See July 3, 2001 Order at 17. In that e-mail, eBay also encouraged Plaintiff to join its Verified Rights Owner ("VeRO") program, by submitting eBay's Notice of Infringement form. Moreover, it contains none of the other requisite elements of a proper notification under Section 512(c)(3)(A), e.g., a statement attesting to the good faith and accuracy of the allegations.
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