Nanda's Alarm Clock Not Only Runs Away From You, It Runs Away From eBay Too

from the wake-up-nanda dept

It looks like more tangible product companies are trying to pretend they can restrict what you do with legally purchased products post-sale (perhaps they're jealous of content companies). Case in point: my brother received the Nanda Clocky as a gift awhile back -- it's a pretty novel alarm clock, when it goes off, its wheels turn on, and it jumps off your dresser, forcing you to climb out of bed to turn it off. Since he already had an alarm clock that worked for him, he decided to sell it on eBay. A few days before his auction was supposed to close, he got a notice that his listing was removed for a "Trademark Violation - Unauthorized Item." Yes, for a legitimately owned product. The email stated:

"Nanda Home Inc. is the owner of the intellectual property rights pertaining to these listings. By listing the 'Clocky' product you are in serious violation of the company's rights. Additionally, Nanda Home does not permit the re-sale of any of their brand product on eBay. There are no authorized Nanda Home re-sellers on eBay. If you continue to list our items, further legal action may be taken."

Clearly, Nanda has a gross misunderstanding of the right of people to re-sell their own property. While it's true that it is against the law to sell counterfeit copies of a product, re-selling your own goods and representing them as "real" is completely within the bounds of the law, and eBay policy. To make matters worse, the condescending tone of the email also suggests that:

"You may need to take a tutorial. The next time you sell, you may be asked to take the tutorial, if it's required. Once you've completed the tutorial successfully, please review your account status for any other possible concerns. If there are no other issues, you should be able to sell again."

Or, perhaps Nanda and eBay should take a tutorial on the right of first sale. In the aforementioned tutorial, eBay clearly understands the right to re-sell (in fact, a huge part of its business relies upon this fact). Yet, to make matters worse under eBay policy it's still a laborious process to get the item relisted -- even with the bogus takedown notice. As a seller of an incorrectly taken down Clocky listing, you have to contact Nanda and have them specifically authorize your product to be re-listed. Yes, even though it's Nanda who issued the incorrect takedown in the first place. So much for frictionless commerce.

The even bigger problem is in the process in which such listing takedowns are handled. Under the guise of rooting out counterfeit products, Nanda is able to unfairly reduce the number of its own secondhand goods in the marketplace. Other manufacturers have tried to do this in the past for everything from shampoo to radar detectors. And, much like the DMCA process, this "guilty until proven innocent" approach ultimately hurts the consumer, who now has unfairly reduced access to many products that were to be sold completely legally.

That said, my brother followed the eBay process to get his Clocky relisted. They sent him an email apologizing for their error and authorizing him to relist, which he did. Guess what? In an effort to punctuate how ridiculous this policy is, one day later, he got an email, "Trademark Violation - Unauthorized Item."

Anyone want to buy a Clocky?

56 Comments | Leave a Comment..

Using Creative Fiction To Increase Value Of Trinkets On eBay

from the using-infinite-goods... dept

When we talk about understanding how to embrace the economics of infinite goods, one of the key points I've tried to make is that every product is a bundle of scarce and infinite goods. That's a point that some people have a lot of trouble with at times, insisting that some people who create infinite goods have no scarcities to sell... and, conversely, that those who make scarce goods, sometimes have no infinite goods to give away with them. While it may be a bit more complicated to separate out the scarce and infinite goods, it doesn't mean they don't exist.

Parker writes in to point out a fascinating example. Apparently a group of fiction writers are experimenting with selling physical goods on eBay with fictional stories given away "free" in the description. The project is called Significant Objects, and involves a bunch of fiction writers purchasing random trinkets, and then coming up with a neat story to go with them. The post at io9 notes that some stories seem better than others at increasing the auction bids, but points out that: "If Rosenfeld's success is any indication, these authors may actually get paid more for short fiction on eBay than they would at most publications."

Again, some will incorrectly claim that we're saying that fiction writers should start selling crap on eBay, but that's not it at all. This is just one (fun) example of many of content creators smartly using infinite goods (the stories) to make a scarce good (the trinket) more valuable, and putting in place a business model to profit from it. Once again, we learn that creativity knows no bounds, not just in creating content, but in playing around with new business models.

12 Comments | Leave a Comment..

L'Oreal Keeps Trying: Appeals French Ruling Against eBay

from the can't-stop dept

It appears that L'Oreal just refuses to give up. The company has sued eBay in a bunch of different countries trying to get a court somewhere to admit that eBay is somehow liable for actions of its users. To date, it's been a clean shutout against L'Oreal, who has lost cases in Belgium, the UK and France (I believe cases are still pending in Germany and Spain, though it's hard to keep up). The ruling in France was the biggest surprise, given that French courts have ruled the other way in the past. Given that, it looks like L'Oreal isn't done yet on its home turf, as it's appealing the ruling in France. At some point, one would hope that L'Oreal would realize that going after eBay is targeting the wrong party, but it appears that no one at L'Oreal seems all that interested in actually understanding the issues, and wants to see how many shots it can get at making eBay pay up.

2 Comments | Leave a Comment..

L'Oreal Looks For Friendlier Locales In Its Suits Against eBay

from the you-can-even-shop-for-jurisdictions-easily-online dept

US courts have generally recognized that eBay isn't liable for the actions of people who use its site to sell counterfeit goods, though a recent decision went the other way. This situation reflects the lack of uniformity around the world in this type of case: for instance, eBay was found liable in France, but was not in Belgium. In the Belgian case, eBay was sued by cosmetics maker L'Oreal, but the company hasn't let the ruling slow it down, as it's now filed a similar suit in the UK. It's also sued eBay in France, Germany and Spain -- which could lead one to believe that it's jurisdiction shopping, simply filing suits in many different countries and seeing what sticks, with the hopes that victory in one place will force eBay to play ball worldwide. The issue of eBay's lack of liability as a platform provider remains an important one, but the problem of international jurisdiction shopping remains a massive one for companies online.

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

7 Comments | Leave a Comment..

Are Intellectual Property Sales Growing In The Recession?

from the evidence-please dept

The Chicago Tribune has an article claiming that intellectual property sales are "growing" despite the recession, as companies look to sell off what they're not using. Except... the article doesn't present any evidence whatsoever. It simply quotes some execs at Ocean Tomo, the IP auction house who has a vested interest in getting more companies to "sell" their patents. It's pretty weak that the Chicago Tribune is effectively publishing a press release for Ocean Tomo, never once substantiating the headline or the claims from Ocean Tomo execs. I don't doubt that some companies will grow more desperate and may resort to trying to "sell" useless patents, but if the article (and Ocean Tomo execs) are going to claim it as fact, you'd think they'd present some evidence to back it up.

10 Comments | Leave a Comment..

Hey, Didn't Taxpayers Pay For Those Patents NASA Is Auctioning Off?

from the i-thought-so dept

ReallyEvilCanine writes in to let us know that Ocean Tomo, the patent auctioning company has worked out an agreement to auction off a package of 25 NASA patents covering things like signal processing, GPS for spacecraft and sensor technologies. Ocean Tomo always presents itself as somehow creating value from patents, but always seems to ignore how its version of creating value often means significant value lost to actual innovators. In this case, there's an even bigger question: didn't taxpayers pay for those patents by funding NASA? So why is some company now going to benefit from them, while locking the public out? In effect, the public is paying twice (at potentially inflated prices) for these inventions. Yet, you won't hear that from Ocean Tomo or the press reports about this auction, which note:

"Creating a market for patented technology funded by NASA benefits both the government and the commercial sector that will take advantage of it."

That leaves out the taxpayers who funded this in the first place and is simply incorrect. It harms the commercial sector by making them pay again for something. If NASA wanted to benefit the commercial sector, it could have placed those patents in the public domain, so that the commercial sector could compete to do something useful with them, thereby spurring on competition and more innovation.

64 Comments | Leave a Comment..

Will A Google/Yahoo Ad Deal Really Impact Ad Prices?

from the not-so-clear dept

The Association of National Advertisers (ANA) has sent a letter to the Justice Department opposing Yahoo's plan to hand much of its search advertising over to Google. We've already explained some reasons why this combination shouldn't set off antitrust alarms, but the reasons given by the ANA don't make much sense. It claims that the deal would basically mean that one company would control 90% of the market, which would lead to increased prices for advertisers. However, that doesn't necessarily seem true to follow -- because Google doesn't set prices for ads. Google's ad system is, famously, an auction system where the prices are set by the market. So it's difficult to see why the inclusion of Yahoo's ad inventory would significantly raise the prices -- unless the argument is that the market is artificially depressed right now, and this would just raise it to the proper levels. However, apparently, that might not matter much, as reports are coming out that the Justice Department has already hired a big time antitrust lawyer to use against Google. This is increasingly looking like a political attack on a company that is "big" rather than looking to see if its success actually harms or helps consumers.

17 Comments | Leave a Comment..

Wikileaks Tries Auctioning Off Leaked Documents

from the interesting-experiment dept

We've been talking about the variety of new and different business models springing up around investigative reporting, and here's another interesting take on the matter. Wikileaks, the site that's become rather infamous for publishing all sorts of leaked documents is experimenting with auctioning off the latest set of documents its received (in this case, emails from the Venezuelan government). Wikileaks will publish the emails itself eventually, but wants to offer a news organization a chance at the exclusive rights to publish the initial stories on the documents, seeing that as a way to raise money to keep Wikileaks going.

As the folks at Wikileaks point out, it's not all that different than various tabloids paying millions of dollars for "exclusive" photos of some celebrity's new baby. However, with newspapers struggling with their own business models, it's unclear who's really going to cough cash up to get exclusive access to these documents. Also, this model runs all sorts of risks: what if the emails don't really reveal that much of interest? Then you're going to have a pissed off buyer. Plus, the whole obsession with "exclusive" news stories is pretty silly. You can't own the news, and while being first on a story may gain some initial traffic, other news sources will pick up the story pretty quickly themselves.

8 Comments | Leave a Comment..

Belgian Court Agrees With US Court That eBay Not Liable For Fake Products

from the another-good-decision dept

Just days after Tiffany appealed the correct US ruling that eBay isn't liable for counterfeit goods sold on the site, a Belgian court has sided with eBay in a very similar lawsuit involving L'Oreal. Apparently, the Belgian courts understand how liability works a lot better than their neighbors in France, who ruled the other way in a case involving Louis Vuitton.

L'Oreal says it's "surprised" by the decision and will appeal, but fails to explain why eBay, as a platform maker, should be responsible for what people do with that platform. About the only answer seems to be that L'Oreal recognizes eBay is an easier target than going after those actually responsible (those selling the counterfeit goods). It's nice that most courts recognize that the easiest entity to sue is not necessarily the proper entity to sue.

17 Comments | Leave a Comment..

Tiffany Still Confused About How Liability Works; Appeals eBay Decision

from the let's-try-this-again dept

Last month a US court correctly pointed out that eBay was not liable for counterfeit products showing up on the auction site. That doesn't mean that it's legal to sell counterfeit products, just that eBay isn't liable for the counterfeits showing up there. Instead, it should be the person who actually lists the item that's liable. That makes perfect common sense. Except to Tiffany, apparently.

The company is now appealing the ruling, making some bizarre arguments in its own defense:

"If one were a flea market operator and you become aware that counterfeiting is going on with the individual sellers at the flea market, you have a duty to investigate it. Why is eBay any different from that analogy?"

Well, two things, actually. First, it's the individual seller in that situation that's liable, not the flea market operator, and much more importantly, eBay is quite different than a typical flea market in that it doesn't pre-vet any of the sellers. A traditional flea market involves the flea market operator finding sellers. eBay is just a platform where anyone can sell. That is, eBay has simply no knowledge of what anyone is selling on the site -- nor should it be required to. The law is pretty clear on this, so it's not at all clear what Tiffany thinks it's going to accomplish here other than to waste a lot of money on lawyers who seem to be giving the company really bad advice.

34 Comments | Leave a Comment..

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.

13 Comments | Leave a Comment..

US Courts Recognize That eBay Isn't Responsible For Auctions By Users

from the a-good-ruling dept

Unlike last month's awful ruling in a French court, costing eBay millions, a US court has correctly recognized that eBay should not be found responsible for auctions of counterfeit goods. This case involved Tiffany Co., who wanted eBay to be held liable for others selling fake Tiffany goods on eBay auctions. The court sided with eBay on every single charge, and smacked down Tiffany over and over again in the ruling. It noted that eBay is not responsible for the actions of its users, and Tiffany is wrong to suggest that eBay has the responsibility to monitor the auction site for infringing auctions. eBay does take down such counterfeit auctions when made aware of them, and that is all that the company is required to do. The court specifically points out that the Supreme Court had already rejected the idea of a "reasonable anticipation" standard that would have made eBay liable, even though Tiffany tries to suggest otherwise. The court also notes that eBay didn't infringe on Tiffany trademarks in mentioning Tiffany in advertisements for the site. This is an excellent overall ruling, and nearly the complete opposite of the terrible French ruling.

22 Comments | Leave a Comment..

Now Companies Suing eBay For Giving Others Better Listings

from the give-it-up dept

Remember all those lawsuits against Google by people who didn't like how Google listed them (i.e., they felt that Google had them too far down the rankings)? Well, it appears that some similar lawsuits are being filed against eBay. One jewelry sales company, Windsor Auctions, felt that it should have been making more money via eBay and sued the company after realizing that a competitor was using tools eBay provided it to get better listings. Windsor mostly relied on a depression-era law that tried to stop big companies from engaging in predatory sales practices (using its marketing muscle to force suppliers to give it better deals). As Eric Goldman points out in the link above, the law makes almost no sense today (and it's questionable if it ever did). It certainly doesn't seem to apply to this case -- and the court has agreed, tossing out those charges, though leaving some others dealing with a implied covenant of good faith and fair dealing. It's difficult to see how eBay can be at fault here for offering up tools that will help sellers, but as we've seen with all those Google cases, companies always look for someone to blame when someone beats them in the market -- and the company with the big pockets is always an easy target.

10 Comments | Leave a Comment..

Is A GoDaddy VP Bidding Against Customers In Domain Auctions?

from the very-questionable-if-true dept

Slashdot is running an interesting post, suggesting that GoDaddy's VP in charge of managing the domain auctions it runs on expired domains, has been caught participating in the auctions himself, often driving up the prices of those auctions for customers. That's one way to pump up those revenue numbers. If this is shown to be true, it seems incredibly questionable.

28 Comments | Leave a Comment..

Australia Tells eBay It Can't Require Auction Users Only Use PayPal

from the competition-is-good dept

Slashdot points us to the news that Australian regulators have slapped down eBay's attempt to require users to use PayPal as a payment system, noting:

"Given eBay's position as Australia's leading online marketplace, the notified conduct will substantially reduce competition to supply online payment services to users of online marketplaces more generally. The ACCC acknowledges that having PayPal as the only payment provider has the potential to deliver some benefits to users, such as increased buyer protection insurance in certain circumstances. However, the ACCC believes that consumers are in the best position to decide which payment method is most suitable for them."

eBay's plan to ban all other payment system received a ton of negative publicity when first announced, so perhaps Australia's response isn't all that surprising. However, is it really necessary for the Australian government to step in? The anger from eBay users was quite strong, and you would think that the end result would be eBay users leaving for other online e-commerce options -- and that, alone, should be enough to get eBay to reconsider this decision. eBay shouldn't need to have the Australian government tell it that restricting payment options is a dumb idea. Consumers were already doing so. And, if we go by the ACCC's own words, it supposedly "believes that consumers are in the best position to decide" which e-commerce platform is most suitable as well.

31 Comments | Leave a Comment..

Online Auctions No Longer Fun?

from the just-not-worth-the-hassle dept

Lately, whenever we post about eBay, a huge crowd of folks shows up to complain about eBay. Many of the changes that eBay has implemented over the past few years haven't gone over well -- but a Business Week article suggests something else is up also: buyers just aren't interested in the "auction" model as much as they used to be. Personally, I know that's true for me. I remember bidding on a variety of auctions on eBay, but I doubt I've done so in at least five years -- mostly because I can find whatever I'm looking for a decent price and just buy it elsewhere, without the hassle of the auction. When it first came along, the auction process was novel and fun -- and it offered up products that just couldn't be found elsewhere. But, these days, that's very rarely the case. The auction process seems like a pain and most of the products are available in a more convenient manner.

That certainly doesn't mean the end of eBay, or even the end of auctions (as Mathew Ingram notes, auctions are good for a certain class of products). And, as the original article notes, eBay's business has been shifting increasingly to fixed-price sales rather than auctions. But many people still do think of eBay as an auction site, and its biggest near-term challenge may be convincing people that it's more than that.

57 Comments | Leave a Comment..

Court Says Reselling Software Is Okay

from the good-news dept

Last year, we wrote about a case filed by an eBay seller against Autodesk, claiming the company unfairly prevented him from reselling used copies of Autodesk software that he had legally purchased. Basically, every time the guy listed Autodesk software, the company would send a DMCA takedown to eBay who would take it down. Each time, the guy would send a counter claim, which Autodesk would ignore, allowing the software to go back on the site. However, with so many takedown notices, eBay banned his account for abuse -- even though he successfully responded to each claim as being false. For that, he sued Autodesk. Autodesk moved to have the court dismiss the case claiming that the seller had no right of first sale because the software was "licensed" rather than sold. If that sounds like weak semantics, you've got a point... and it appears the court agrees with you. In denying Autodesk's request to dismiss the case, the court indicates that, even though the case law covering this issue often varies, it believes that the software has been sold, not licensed, and therefore the right of first sale does exist on Autodesk's software. The case should now proceed if Autodesk doesn't quickly show up with an offer to settle the case quietly (which it might). Assuming the case does go forward, it's going to be worth watching closely, as it will have important ramifications for the right to resell software you purchased.

40 Comments | Leave a Comment..

Sellers Band Together To Create Their Own Naughty Buyer List For eBay

from the well-that's-one-way-to-deal-with-things dept

Back in February, you may recall that eBay announced plans to ban negative feedback from sellers to buyers. The problem was that many sellers were apparently using it as a weapon against buyers who might criticize them. That is, if you had a bad experience as a buyer, rather than fix the problems that resulted in that bad experience, the seller would simply slam you back in the buyer feedback. In other words, it had become something of a nuclear stalemate -- forcing buyers to be too afraid to leave any negative feedback for sellers. Of course, banning negative feedback on buyers seems a bit extreme as the response. And, in the comments to our post, people suggested a variety of alternatives eBay could have tried (including not letting you see the feedback someone left for you until you leave feedback for them). In the meantime, sellers who are upset about this may now have another weapon. One site has set up a system for sellers to share their own buyer "blacklists," effectively creating a large list of problem buyers. What's most interesting to me, is how this shows how the community itself responds to a change in the rules that they feel has too many negative consequences -- rather than just waiting for eBay to fix the problem.

29 Comments | Leave a Comment..

Warner Brothers Shuts Down Auction For Children's Cancer Charity

from the nice-of-them dept

Reader Jonathan points us to a story that's also made the rounds on Boing Boing. Basically a blogger who apparently is somewhat well connected in the comic book/superhero world decided to get a bunch of artists he knew together to create comic character-based artwork to auction on eBay with the proceeds being sent to a children's charity who had helped out his own family at one point. The charity auction was announced, a bunch of artists signed up and created superhero-related artwork, and the auctions began on eBay. At some point, Warner Brothers, who owns the rights to many superhero characters contacted eBay to shut down a few of the auctions. This made the guy pull the rest of the auctions and get a bit nervous about whether or not he broke the law. Oddly, after all of this started getting attention Warner Brothers let one of the auctions proceed, but didn't respond to a question from the guy about letting the others move forward. In fact, in an email, Warner Brothers didn't explain its position at all.

On the whole, the legal issue is a bit murky (and it doesn't sound like anyone's making any legal threats here, so this probably won't go any further). The artwork may very well have infringed (though there are reasonable arguments for why it was not infringing as well). However, once again, this does seem like a situation where lawyers jumped ahead of what actually made sense from a business or PR standpoint. A smart company would have seen this going on and would have figured out a way to embrace it and come out of it looking like a good guy -- perhaps sponsoring the charity auction in some manner or another. But in shutting down the auctions, Warner Brothers comes off as a big legal bully who doesn't want to help kids with cancer. One more reason why legal solutions should always be looked at as a last line of defense, rather than an automatic solution.

25 Comments | Leave a Comment..

eBay Exec Explains How Not Using PayPal Is Like Dealing Heroin...

from the work-on-those-analogies-a-bit dept

Down in Australia, eBay has apparently decided to require sellers to use eBay-owned PayPal for electronic transactions, blocking out a number of other solution providers in the space. Understandably, this has upset a bunch of eBay customers who, for whatever reason, prefer other payment solutions (often because they've had bad experiences with PayPal). eBay's Australian execs, to their credit, decided to hold a "town hall" meeting to discuss the changed proposal -- and it didn't go particularly well, from the sound of it (thanks to an anonymous reader for sending that in). Apparently, the booing and hissing started early (well, late, because the eBay team opened the doors quite late) and things just spiraled downhill from there. But the key point of ridiculousness was when regional VP Simon Smith explained the reasoning as follows: "We're not allowing people to offer unsafe choices, just like in this democracy you can't go out and buy heroin on the streets." Now, you can understand what he was saying... but, clearly, there's a bit of a difference between using a non-PayPal electronic payments solution and dealing heroin. And, of course, if this were really about "protecting" buyers and sellers, then shouldn't eBay at least offer a path for third party providers to become "certified" as being safe?

50 Comments | Leave a Comment..