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Ina Steiner is co-founder and Editor of EcommerceBytes and has been reporting on ecommerce since 1999. She's a widely cited authority on marketplace selling and is author of "Turn eBay Data Into Dollars" (McGraw-Hill 2006). Her blog was featured in the book, "Blogging Heroes" (Wiley 2008). She is a member of the Online News Association (Sep 2005 - present) and Investigative Reporters and Editors (Mar 2006 - present). Follow her on Twitter at @ecommercebytes and send news tips to ina@ecommercebytes.com. See disclosure at EcommerceBytes.com/disclosure/.
WAYS TO ADDRESS THE SAD SCHEME
Changes in Online Marketplace Policies
The SAD Scheme would likely evaporate if the online marketplaces did not honor
ex parte TROs so expansively. As just one example, in theory, online marketplaces
could freeze only the items and money associated with the allegedly infringing
activity, not the entire account and all funds-in-possession. However, so long as
online marketplaces fear their own liability exposure, they don’t have enough
incentives to make nuanced interventions. It’s simpler and lower-risk for them to
categorically shut down alleged infringers identified in the TRO.
In other words – if eBay DID ITS JOB CORRECTLY – this wouldnt happen.
Defendant classes. FRCP 23 contemplates that defendants can form classes, just
like rightsowners do.61 For example, a defendant class could bust the rightsowner’s
trademark or establish defenses like descriptive fair use. However, few individual
defendants have enough motivation and resources to organize a class.
IE sue eBay and/or the rights owners in a Class Action suit