This guide examines the legality of the eBay VeRo removal procedure. If you trade on eBay, you may know what it’s like when one of your competitors asks eBay to remove their listings based on alleged copyright violations. What happens when you follow eBay’s procedures to fight back but they don’t work? This guide explains what other legal options you have to prevent your competitor from doing this.
If you’re a small business that sells products through an online auction site like eBay, you’ll be all too familiar with how frustrating it can be when you’re faced with false takedown notices from a rival merchant claiming that your auction listing infringes your copyright. Rights. Unfortunately, these kinds of fake takedown notices under eBay’s VeRO program are becoming more and more common and are often not legitimate.
You make a living selling your products on eBay through eCommerce, but eBay VeRO takedowns lose profits and customers to your competitors or other third parties who issue bogus takedown notices. You tried to defend yourself against these bogus takedown notices by filing a counter-notification with eBay’s VeRO program, but eBay has just accepted the allegations made in the takedown notice that you have infringed the rights of copyright owners. .
The Digital Millennium Copyright Act (DMCA) was enacted by the US Congress to stop copyright infringement that occurs through the illegal reproduction of copyrights on the Internet. It was designed to encourage cooperation between copyright owners and online service providers, such as Internet Service Providers and other online intermediaries, such as eBay, so that they are not held liable for rights infringement. copyright, but only if they take immediate steps to remove the allegedly infringing material. This is known as “safe harbor” protection, and eBay’s VERO program was developed to try to comply with the provisions of the DMCA to claim immunity.
When the copyright owner contacts the service provider, ISP or web hosting company to provide details of the infringement, the service provider receiving an infringement notice has the right to disable the website Therefore, if eBay believes the takedown notice is valid, it can disable your auction. By taking such action, eBay is protecting itself from infringement. eBay does not have to do much research to determine that the material is infringing.
However, under the provisions of the DMCA and equivalent provisions in other jurisdictions, you have the right to be notified that allegedly infringing material has been removed and you have the opportunity to send eBay written notice that you believe your material has been removed. you have incorrectly deleted.
As an eBay merchant, you know that you have the option to file a counter notification if you have good reason to believe that the removal is unfair or illegal.
The problem is that service providers are under pressure to remove materials to protect themselves from liability. Although eBay provides a means to explain to eBay merchants how to reset their auctions, the reality is that eBay fails to properly investigate the counter notification or rejects it in error. You unfairly receive a negative mark on your behalf as a merchant that can add up and can eventually get you suspended from eBay even though you were the innocent party.
Takedowns based on alleged copyright infringement are often false, fraudulent, and an abuse of the law. Abusive takedown notices that are fake often happen because companies want to control who sells their product. Companies also want to prevent sellers from competing with their authorized dealers and are hoping that the small seller won’t know or go to the trouble of fighting a fraudulent takedown notice. Your rivals will also submit takedown notices to try to take out their competition. The DMCA makes it very easy for unscrupulous merchants to file fake takedown notices.
You can do something if eBay doesn’t protect you. You can file a legal action as if you were the victim of a fraudulent removal on eBay. You may have a number of causes of action against the seller depending on the jurisdiction in which you bring your legal action. You may be sued for misleading and misleading conduct, interference with contractual relationships, defamation and violation of the equivalent Australian DMCA copyright law (Copyright Act)
This guide explains how so eBayer in Chicago recently did just that to prevent a competitor from submitting VERO takedown requests to eBay alleging copyright infringement on products to which it never held valid copyright. Copyright protection extends to certain products of the mind, but it was not intended to extend to industrial designs or ‘useful articles’. If you have reason to believe that a third party is trying to protect something that is not subject to copyright law and eBay has not properly investigated your claims, you can go to court and seek an injunction to stop someone from continuing to broadcast. takedown notices.
A US court recently heard an eBay merchant’s request for a temporary restraining order against a rival eBay merchant and held that the eBay merchant who sent the notice did not have any valid copyright in the items. that they had sent eBay notices that led to their removal from competitors’ auction listings.
The Court recognized that Defendant had violated s512(f) DMCA by knowingly and materially misrepresenting that Plaintiff’s eBay auctions contained infringing material. The court held that the plaintiff would likely be successful since the defendant had no valid copyright in his furniture, as it was a “useful article” of commerce and not subject to copyright protection.
Due to the risk of harm to the Claimant arising from the suspension of its activities and the loss of goodwill and clients, the court considered that, in general, the injunction should be granted. The Court held that issuing the order would be in the public interest. The Court also made a comment indicating how permissive eBay’s were in simply removing content-based policies in an allegation of infringement, thus reversing the normal burden of proof that falls on the plaintiff to dismiss an allegation of property infringement. intellectual.
However, the reality is that legislation like the DMCA and the practical operations of businesses often mean that Internet service providers, online auction sites and content hosts unfortunately have to be the police, judge and jury under the DMCA and do the best job they can. to respond to requests to remove material. Errors can happen.
The case serves as a reminder that the EULA and TOS do not always comply with the law and that one should always look beyond the terms of service when evaluating whether or not a website complies with the law.
EBAY routinely suspends user accounts and auction listings at the request of a VERO member. The VeRo Program established the Verified Rights Owner Program to enable rights owners to easily report and request removal of listings that feature items or contain materials that they claim infringe their intellectual property rights.
This is an easy method for rights holders to request eBay auctions to be removed without having to prove that the auction holder is infringing on the owner’s intellectual property rights, either trademark or copyright. . eBay treats notification of alleged infringement as equivalent to proof. VERO is a means for rights holders to take a shortcut to shut down any merchant. There is little due process for an alleged violation of a VERO member’s copyright. A court order is not required for an eBay program participant to notify eBay to close a vendor.
eBay has framed guidelines and policies that describe items that may not be listed on eBay and may expose you to risk. These include items prohibited by law, those prohibited by eBay policy, and those reported by a VeRO program participant. All the rights holder has to do is follow the removal procedure. They don’t have to prove any of their allegations in a court of law, unless of course you do what Design Furniture did and hold them accountable.
Any item that violates eBay policies or infringes the copyrights of others may be removed and some listings will be removed as the language or photos used in the item title or description violate eBay policy. This means that some items you may have purchased in a store, or even possibly on eBay, may not be allowed or may be removed due to listing policies.
This requires auction users and sellers to prove their innocence, which is granted automatically until such time as the IP owner obtains a court order proving otherwise.
Online video services like YouTube have developed a notification mechanism to be eligible for safe harbor protection against secondary charges for copyright infringement. eBay has been using a similar procedure since 1997, a year before the DMCA was enacted. However, the amount of power given to the VeRO member leaves the system wide open to misuse.
Rights holders have been using VeRO to suppress a vibrant secondary market for their products and to restrict competition. There is a counter-notification procedure, as required by the DMCA, members who wish to object to removal must go through a process whereby they have to do their best to get eBay involved in the counter-notification process. If the rights holder claims that the right being violated is a trademark right and not a copyright being infringed, eBay will not send any counter-notifications to the user.
Notifying eBay of an infringing item is very easy, and a business only needs to fax in a form, at which point they will be provided with an email address to speed up the process. Many non-copyright holders misuse the VeRO process to get auctions of competitor interests removed. eBay states that it does not tolerate the anti-competitive use of VeRO. Infringement notification is very easy.
Just three notifications from a VeRO member could lead to suspension or termination of an eBay user account and infringement claims, and even if there is a successful counter-notification, infringement claims remain on the account holder’s record.
DMCA s512(f) provides for the punishment for a false accusation through the VeRO program, but there has not been a single case where this has occurred, despite studies showing that 30% of notifications demanding that the claims be removed present a question for a court to consider. . Thirty percent of the notices called for the removal of claims that had an obvious relationship to whether certain material was copyrighted or whether there was a valid defense.
