Ina Steiner EcommerceBytes Blog
News and insight focusing on ecommerce.
by Ina Steiner, Editor of EcommerceBytes.com
Mon Oct 8 2012 09:46:50

Your Right to Sell on eBay Is in Jeopardy

By: Ina Steiner

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A looming case to be heard by the U.S. Supreme Court has eBay worried, and online sellers are incredulous upon hearing the ramifications if the High Court does not overturn the lower court rulings. "If the court rules against this seller and it also applies to domestic sales, this will be the death-blow for small sellers like me!" one reader wrote. The case impacts the "first-sale doctrine," which permits buyers who purchase copyrighted works in a legitimate transaction to resell them without obtaining permission.

In Wiley v Kirtsaeng, a New York court rejected eBay seller Kirtsaeng's first-doctrine defense, ruling that it did not apply to goods produced overseas and imported to the United States, a decision upheld by the Second Circuit Court.

eBay has been closely following the case. It joined with NetCoalition and several other tech associations in asking the Supreme Court to hear the case. "eBay's online platform permits secondary marketplace trade in a wide range of goods. Accordingly, eBay has an interest in ensuring the alienability of authentic goods in the secondary market," eBay wrote in an amicus brief.

In April, eBay hailed the court's decision to hear the case. eBay spokesperson Johnna Hoff said, "In reviewing the case of Wiley v. Kirtsaeng, the Supreme Court now has an opportunity to protect the right of small businesses and individuals to sell legitimate goods across borders, which will benefit consumers, businesses and the overall Internet-enabled economy."

The case is so important to the online marketplace, it posted a message on the eBay Announcement Board asking sellers to join its eBay Main Street initiative, "a grassroots organization of eBay members taking action to promote smart government policy and protect the rights and interests of ecommerce sellers like you."

"The outcome of this case could have significant implications for your rights as a seller," eBay wrote.

EcommerceBytes will be attending the Supreme Court oral arguments at the end of October - but it could be months before a decision is handed down.




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Readers Comments

Perminate Link for Your Right to Sell on eBay Is in Jeopardy   Your Right to Sell on eBay Is in Jeopardy

by: lemonsandlemonade This user has validated their user name.

Mon Oct 8 10:11:22 2012

Ironic- ebays policies and search changes have damaged many small sellers/businesses - described as 'noise', a successful 'past'.

Now ebay wants the help and support of those same people because ebay sees it could be damaged by this decision.

Perminate Link for Your Right to Sell on eBay Is in Jeopardy   Your Right to Sell on eBay Is in Jeopardy

by: JackieBlue This user has validated their user name.

Mon Oct 8 10:27:01 2012

While I want the USSC to overturn the lower court rulings - there is no "right" to sell on eBay.  We do not have a "right" to sell anything - we are all bound by rules.  I cannot sell marijuana or heroine in any market, much less eBay.  Plus, as eBay is the owner of the marketplace, they can put in place any rule they choose as long as it is not in violation of the law.  I don't think they can say that African-Americans cannot sell on eBay but they can say that people from California cannot sell on eBay.

Perminate Link for Your Right to Sell on eBay Is in Jeopardy   Your Right to Sell on eBay Is in Jeopardy

This user has validated their user name. by: Bijoux Dragon
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Mon Oct 8 11:28:39 2012

Yes, I hope the ruling is changed as it will spell the death of used book sales unless they are so old they are copyright free.  Publishers trying to gin up kindle etc. sales maybe???

As for ebay's  Grass Roots group - they have spent years maligning small sellers and now they want help??? They can kiss my you-know-what that they just drove out the half.com door!

Perminate Link for Your Right to Sell on eBay Is in Jeopardy   Your Right to Sell on eBay Is in Jeopardy

by: Ladmo This user has validated their user name.
Web Site

Mon Oct 8 11:29:45 2012

RE: ''Your Right to Sell on eBay Is in Jeopardy.'' The petition filed is without merit because the seller broke the law. He sold an item that was CLEARLY stated NOT to be exported, or resold outside the authorized sovereign boundaries for which the publisher intended.

As clearly stated in the textbooks this individual sold…

''Authorized for sale in Europe, Asia, Africa and the Middle East Only. This book is authorized for sale in Europe, Asia, Africa and the Middle East only [and] may not be exported. Exportation from or importation of this book to another region without the Publisher's authorization is illegal and is a violation of the Publisher's rights. The Publisher may take legal action to enforce its rights. The Publisher may recover damages and costs, including but not limited to lost profits and attorney's fees, in the event legal action is required.''

Please review eBay’s own rules concerning OEM or Academic Software…because same rule applies:

http://reviews.ebay.com/What-You-Need-to-Know-About-OE
M-and-Academic-Software?ugid=10000000004661436
Why
is the Sale of OEM or Academic Software Illegal?
The following acts are illegal:
• selling OEM software with no hardware or unauthorized hardware.
• selling academic software to a person who does not qualify as a “qualified educational user.”
• selling counterfeit OEM or academic software.
• selling OEM or academic software by an unauthorized reseller or by a person who does not have the software publisher’s authorization to sell OEM or academic software.
• selling OEM or academic software on an auction site when the distribution license prohibits the software from being sold on auction sites.
These acts are illegal because they violate either:  (i) the software publisher’s rights under the copyright law, or (ii) the terms of the distribution contract between the software publisher and the vendor who that publisher authorized to distribute its software.
The copyright law grants the software publisher with the right to control the copying and distribution of its software, including the right to license others to make and distribute copies of its software.  Someone who makes a copy of a software program or distributes the program without the software publisher’s authority has committed a copyright infringement -- also referred to as software piracy.  Similarly, someone who has a license with the software publisher that allows that person to copy or distribute software is guilty of piracy when they exceed or violate the terms of that license.
Software publishers often grant vendors a limited right to make copies or to distribute copies of their software.  For instance, a software publisher may allow a vendor to distribute up to 50,000 copies of its software to “qualified educational users” located in the United States.  If that vendor makes or sells more than 50,000 copies or sells outside the United States or to persons who are not “qualified educational users,” they will have exceeded the terms of their license with the publisher.  Because the software publisher has not granted the vender the authority to engage in these acts, the vendor will be liable for damages under the copyright law and perhaps the license as well.  Furthermore, the software sold by the vendor is considered to be illegal and anyone who obtains a copy of that software is in possession of contraband software.

The honest protection of intellectual property (IP) and legal copyrights is fundamental to the democratic basis for which this republic was founded. Ethics is doing the right thing...when nobody is looking. My 2 cents.

Perminate Link for Your Right to Sell on eBay Is in Jeopardy   Your Right to Sell on eBay Is in Jeopardy

This user has validated their user name. by: Nolle

Mon Oct 8 13:31:41 2012

@ladmo - yes, the publisher has a ''notice'' on the book - that does not mean it is binding or legal.  That's the whole issue - whether or not the first sale doctrine applies.

There are specific statutes and case law applicable to software that is not necessarily applicable to a physical book.  Software can be licensed to a specific computer.  A book is tangible property, and copyright forbids duplication, but not resale of the original book.

If this book was published in the USA, the publisher could not prohibit the resale of the book - regardless of what the original publisher wants, forbids, or claims.  The only issue is whether or not the law applies to overseas publishers.

If the court does uphold the decision, it will still only apply to goods purchased overseas and resold in the US...imho.

Perminate Link for Your Right to Sell on eBay Is in Jeopardy   Your Right to Sell on eBay Is in Jeopardy

This user has validated their user name. by: iheartjacksparrow

Mon Oct 8 13:40:12 2012

@Bijoux Dragon - This case is not about someone who bought a book at Barnes & Noble five years ago and now is listing it for sale on eBay. The seller in question was trying to resell books in the U.S. that were produced with the intent of not being sold here.  

Perminate Link for Your Right to Sell on eBay Is in Jeopardy   Your Right to Sell on eBay Is in Jeopardy

This user has validated their user name. by: Roger Rabbit

Mon Oct 8 14:06:18 2012

If eBay is for it, I'm "agin" it.

Perminate Link for Your Right to Sell on eBay Is in Jeopardy   Your Right to Sell on eBay Is in Jeopardy

This user has validated their user name. by: eBankrupted

Mon Oct 8 14:51:36 2012

Funny how ebay whines like a spoiled child when they get bullied by an 'unfair' rule, but ebay has no problem flipping an 'update' switch to destroy the financial livelihoods of millions of members overnight with a new worst match.

I've let ebay go, since they turned on me like a rabid, vicious, un-loyal and unethical partner. I hope the Supreme Court puts ebay out of business with this ruling, so they feel the same unfair pain they've caused sellers with their bullying authoritarian favoritism tactics.

Perminate Link for Your Right to Sell on eBay Is in Jeopardy   Your Right to Sell on eBay Is in Jeopardy

This user has validated their user name. by: Rexford

Mon Oct 8 14:58:43 2012

Louis Vuitton, Coach, Skull Candy and Burberry must be loving this.

And if it is hands of the US Supreme Court, don't expect a fair or sensible ruling.

Perminate Link for Your Right to Sell on eBay Is in Jeopardy   Your Right to Sell on eBay Is in Jeopardy

This user has validated their user name. by: Rexford

Mon Oct 8 15:00:07 2012

And eBay, I'll vote the way you want me to vote if you will turn my server back on for good.  No on today off today server action please.

Perminate Link for Your Right to Sell on eBay Is in Jeopardy   Your Right to Sell on eBay Is in Jeopardy

by: Mr. Me This user has validated their user name.

Mon Oct 8 15:14:38 2012

Hopefully selling used items wont be affected, as duties, copyright etc have already been paid the first time around.
However selling new offshore produced crap without going through the proper import procedures should be banned!

Perminate Link for Your Right to Sell on eBay Is in Jeopardy   Your Right to Sell on eBay Is in Jeopardy

by: renaissancegirl This user has validated their user name.

Mon Oct 8 15:15:30 2012

Agree with Rexford. Turn the servers back on so we all can be seen fairly and my vote will be in!

Perminate Link for Your Right to Sell on eBay Is in Jeopardy   Your Right to Sell on eBay Is in Jeopardy

This user has validated their user name. by: Anonymous Annie

Mon Oct 8 15:20:24 2012

eBay is only interested in protecting their OWN interests... not those of the seller. Yet when the interests of the seller slightly overlaps with the interests of eBay... only THEN does eBay wake up and put on this BIG SHOW about how ''concerned'' they are for the rights of sellers.

Sorry, eBay. I'm not impressed. eBay's ''concern'' for the welfare and rights of sellers is merely a PR stunt.

I guess eBay thinks we've already forgotten about the new user agreement where sellers sign-away their rights (''no-class-action'' and ''independent'' arbitration only). --- If you want to know what eBay REALLY thinks of sellers, just examine the new User Agreement... and re-read the story on how eBay has just screwed every HDC seller.

I do not trust eBay. Neither should you.

Perminate Link for Your Right to Sell on eBay Is in Jeopardy   Your Right to Sell on eBay Is in Jeopardy

This user has validated their user name. by: eBankrupted

Mon Oct 8 16:53:18 2012

Anonymous Annie is so right in bringing up the user agreement ban on class action lawsuits; which was a result of another Supreme Court ruling. Ebay jumped right on that and stripped away seller rights instantly at the same moment they killed sales with the new search.

Now ebay pretends to care about seller rights? My 'grassroots' aren't growing in your pasture fertilized with corporate greed anymore, JD. May the US Supreme court rule against you!

Perminate Link for Your Right to Sell on eBay Is in Jeopardy   Your Right to Sell on eBay Is in Jeopardy

by: trickstunt This user has validated their user name.

Mon Oct 8 17:05:50 2012

With anti-litigation clauses in the User Agreement, billions in tax free cash stashed offshore, letters to the UN, the oral argument stylings of Johnna Hoff, armies of lawyers and shills along with the glorious new logo, what do they help with?

If this wasn't so sick, twisted and revealing it would be laughable.


Perminate Link for Your Right to Sell on eBay Is in Jeopardy   Your Right to Sell on eBay Is in Jeopardy

This user has validated their user name. by: Philip Cohen
Web Site

Tue Oct 9 00:28:25 2012

Ironic is it not. eBay is demonstrably the greatest knowing and calculated facilitator of fraud on consumers that the world is ever likely to know. And, as their insane policies cause the eBay marketplace to continue to atrophy, everything they now do is done to extract the maximum revenue from their remaining users to underpin their sagging bottom line, and not even the US Criminal Code is allowed to get in the way of that process. eBay is, in fact, a criminal organisation. And, once you come to terms with that reality, there should be no further surprises in store for you from anything that “eBafia” does …

And yet they still have the gall to ask their much abused users to help them, and it is for eBay that they seek this help, not for the eBay users.

The lower court decisions in this matter appear to apply only to the commercial resale of unused copyrighted goods imported other than by the copyright owner and I doubt it is intended to affect the sale of used goods in any non commercial sense. Regardless, the lower courts support for such restraint on trade is obnoxious and maybe the higher court will reverse the decision, but, if so, hopefully not for eBay’s sake, they deserve not even the slightest of any logical consideration.

eBay / PayPal / Donahoe: Dead Men Walking

Perminate Link for Your Right to Sell on eBay Is in Jeopardy   Your Right to Sell on eBay Is in Jeopardy

by: jsgeare This user has validated their user name.
Web Site

Tue Oct 9 11:10:01 2012

Whats at issue here is a technicality in the copyright laws, not the free trade of ordinary property. The technicality is a small one, but small in the way that stone in your shoe is small. For eBay to engage in a great campaign about this is nonsense. The outcome of the case is important, but unlikely to mean much for the everyday seller of ordinary merchandise.

Perminate Link for Your Right to Sell on eBay Is in Jeopardy   Your Right to Sell on eBay Is in Jeopardy

by: truehandmade This user has validated their user name.

Tue Oct 9 11:51:43 2012

eBay has manipulated the facts to take the temp of their sellers without spending money on an actual survey. eBay will interpret any legal conclusions in the same way - they'll cull out what benefits their bottom line.  eBay is crafty and coniving but underneath it all, they're pretty stupid people making stupid strategic decisions that blow a hundred and 2 holes in their own feet.

Perminate Link for Your Right to Sell on eBay Is in Jeopardy   Your Right to Sell on eBay Is in Jeopardy

by: nothingnew This user has validated their user name.
Web Site

Tue Oct 9 13:32:02 2012

A friend just called me to inform me our president signed some kind of executive order? to prohibit sales of used items? Watch Bill O Reily on fox 8pm eastern time for more details. I can't imagine it holding water considering all the money the govt could lose. But what do I know.

Perminate Link for Your Right to Sell on eBay Is in Jeopardy   Your Right to Sell on eBay Is in Jeopardy

by: alixibloun This user has validated their user name.

Tue Oct 9 13:39:23 2012

No, he actually signed an executive order prohibiting misleading blog comments. Watch Chris Matthews with all the details...

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